Supreme Court Term Opens-- Red Mass And Cert. Denials

The U.S. Supreme Court's 2011-12 term opened yesterday with two traditions intact-- the Red Mass and denials of certiorari in hundreds of cases. Catholic Review reports that on Sunday, the 58th annual Red Mass to mark the opening of the Supreme Court's term was celebrated in Washington's Cathedral of St. Matthew the Apostle. The mass is sponsored by the John Carroll Society. Supreme Court justices attending the Mass were Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, Stephen Breyer, Anthony Kennedy and Samuel Alito.

Among the cases of interest in which the Supreme Court denied certiorari yesterday (Order List) were:

• Jefferson County Board of School Commissioners v. Smith (No. 10-1402)-- the 6th Circuit en banc, in an 11-4 opinion, held that two plaintiff school teachers have standing as municipal taxpayers to bring an Establishment Clause challenge to the closing of the a Tennessee school district's alternative school and its outsourcing the services instead to a Christian private school. (See prior posting).
• Sherman v. Koch (No. 10-1191)-- In a 2-1 decision, the 7th Circuit upheld Illinois' Silent Reflection and Student Prayer Act against Establishment Clause and vagueness challenges. The refusal to review was reported on by Education Week. (See prior posting.)
• Orange County, Calif., v. Khatib, (No. 10-1505)-- the 9th Circuit, en banc, concluded that a courthouse holding facility is a "pretrial detention facility" that is covered by RLUIPA. Huffington Post reports on the denial of cert, (See prior posting).
• DeWeese v. ACLU, (No. 10-1512)-- the 6th Circuit held that a Ten Commandments display posted in a courtroom by a state common pleas court judge violates the Establishment Clause. AP reports on the denial of cert. (See prior posting.)
• St. Elizabeth's Child Care v. Pennsylvania Department of Public Welfare, (No. 10-1391)-- a Pennsylvania state appellate court rejected free exercise challenges by a Catholic child day-care center to the requirement that it obtain a state certificate of compliance in order to operate. (See prior posting.)
• San Leandro, CA v. International Church of the Foursquare Gospel, (No. 11-106)-- the 9th Circuit reversed the district court and held that a city's zoning decision made under a neutral, generally applicable zoning law can impose a "substantial burden" on a church's exercise of religion under RLUIPA. The San Francisco Chronicle reports on the Supreme Court's action. (See prior posting.)

UPDATE: The Supreme Court on Monday also denied certiorari in Spencer v. World Vision, Inc., (No. 10-1316)-- The 9th Circuit, in a 2-1 decision, held that the Christian humanitarian organization, World Vision, comes within the exemption in Title VII of the 1964 Civil Rights Act  for religious organizations. The Court's action is reported in Christianity Today. (See prior posting.) [Thanks to Ted Olsen for the lead.]

Muslims, Christians Criticize Two-Child Proposal In Indian State

In India, Muslims and Catholics are strongly criticizing the Women's Code Bill that is being proposed by the government in the state of Kerala. According to Sunday's On Islam, the bill would impose fines of up to $203(US) and jail terms of up to 3 months on parents who have more than two children. A third child will not be eligible for government services.  The bill also encourages free abortions at government facilities and access to free contraceptives.

U.S. Bishops Create New Committee On Religious Liberty

The U.S. Conference of Catholic Bishops announced last week that it has formed a new Ad Hoc Committee on Religious Liberty "to address growing concerns over the erosion of freedom of religion in America." USCCB president Archbishop Timothy Dolan also sent a letter to fellow bishops informing them directly of the new Committee, saying:

The Framers of the Constitution themselves understood [religious liberty] ...  to be based on the norms inherent in Natural Law – namely, "that all men are created equal, that they are endowed by their Creator with certain inalienable rights, and that among these are Life, Liberty, and the Pursuit of Happiness."  This basic right, in its many and varied applications for Christians and people of faith, is now increasingly and in unprecedented ways under assault in America.

The new committee will be chaired by Bishop William Lori of Bridgeport, Connecticut. Among the pressing issues identified by the bishops are federal policies regarding reproductive health services, administration opposition to the Defense of Marriage Act, the Justice Department's position on the "ministerial exception" doctrine, and the narrow religious exemptions in New York's same-sex marriage law.

Court Upholds Regulation of Fortune Tellers

In Moore-King v. County of Chesterfield Virginia, 2011 U.S. Dist. LEXIS 112205 (ED VA, Sept. 30, 2011), a Virginia federal district court rejected  constitutional challenges to Chesterfield County, Virginia's regulation of the business of fortune telling. Patricia Moore-King, a "spiritual counselor" who operated under the name of "Psychic Sophie" claimed that the county's zoning, business license tax and fortune teller permit ordinances violate her free exercise of religion, free speech and equal protection rights. The court held that plaintiff's predictions and counseling services are inherently deceptive commercial speech, and that the regulation of them is reasonably drawn. The court rejected plaintiff's free exercise and RLUIPA claims, finding that she is not engaged in religious practices. It also rejected her equal protection claims.

Faith Healing Parents Convicted In Death of Child

In Oregon City, Oregon last week, Dale and Shannon Hickman were convicted of second degree manslaughter in the death of their seriously ill infant son for whom they prayed and who they anointed with olive oil instead of seeking medical help. AP reports that the Hickman's are members of the Followers of Christ Church which has a history of rejecting medial care for members' children. Because of a religious exemption in the prior version of state law, the Hickman's are likely to face no more than 18 months in prison and a $250,000 fine. This year the state legislature removed the religious defense for criminal violations.

Israeli Court Says Author Can Change Status to "Without Religion"

In Israel, a trial court last week granted a petition by award-winning author, 81 year-old Yoram Kaniuk, to change his official religious status in the Interior Ministry's Population Registry from "Jewish" to "Without Religion."  Haaretz reports that Tel Aviv District Court Judge Gideon Ginat wrote: "Freedom from religion is a freedom derived from the right to human dignity, which is protected by the Basic Law on Human Dignity and Freedom." Author Kaniuk says this still allows him to be Jewish by nationality. Last year, Interior Ministry officials allowed the religious status of Kaniuk's infant grandson to be changed from American Christian to "without religion." [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]Israeli Court Says Author Can Change Registration Status From Jewish To "Without Religion"

Recent Law Review Review Articles

From SSRN:

• Marie Ashe, Privacy and Prurience: An Essay on American Law, Religion, and Women, (American Journal of Legal History, Vol. 51, p. 461, 2011).
• Katherine Spencer, Mahr as Contract: Internal Pluralism and External Perspectives, (Oñati Socio-Legal Series, Vol. 1, No. 2, 2011).
• Paul Horwitz, Act III of the Ministerial Exception, (Northwestern University Law Review, Forthcoming).
• Richard W. Painter, The Moral Responsibilities of Investment Bankers, (University of St. Thomas Law Journal, Vol. 8, No. 1, 2010).
• Samuel T. Grover, Religious Conscience Exemptions to the PPACA Health Insurance Mandate, (American Journal of Law and Medicine, Vol. 37, No. 4, 2011).
• Leslie C. Griffin, Ordained Discrimination: The Cases Against the Ministerial Exception, (U of Houston Law Center No. 2011-A-9, Sept. 30, 2011).
• Susan E. Hauser, More Than Abstract Justice: The Defense of Marriage Act and the Equal Treatment of Same-Sex Married Couples Under Section 302(A) of the Bankruptcy Code, (American Bankruptcy Law Journal, Forthcoming).
• Anita Bernstein, Toward More Parsimony and Transparency in 'The Essentials of Marriage', (Michigan State Law Review, Vol. 81, 2011).
• Caroline Mala Corbin, The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, (Northwestern University Law Review Colloquy, Forthcoming).

SmartCILP:

• John Garvey, Intellect and Virtue: The Idea of a Catholic University, 60 Catholic University Law Review 563-573 (2011).
• Samuel J. Levine, Second Annual Holocaust Remembrance Lecture at Washington University. Jewish Law From Out of the Depths: Tragic Choices in the Holocaust, 10 Washington University Global Studies Law Review 133-142 (2011).

Recent Prisoner Free Exercise Cases

In Burnett v. Hall, 2011 U.S. Dist. LEXIS 107884 (MD TN, Sept. 22, 2011), a Tennessee federal magistrate judge recommended dismissing a claim that a county jail failed to provide Muslim religious services.

In Rodgers v. Shearidin, 2011 U.S. Dist. LEXIS 108406 (D MD, Sept. 22, 2011), a Maryland federal district court rejected a Sunni Muslim inmate's claim that his rights under the 1st Amendment and RLUIPA were violated when he was not permitted to attend communal worship while in administrative segregation.

In Davis v. Powell, 2011 U.S. Dist. LEXIS 104537 (SD CA, Sept. 15, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 108053, Aug. 8, 2011) and dismissed with leave to amend complaints of a Muslim inmate regarding a prison ban on flammable prayer oil and rules that required him to choose between receiving a quarterly package of either food or prayer oil.

In Porter v. Wegman, 2011 U.S. Dist. LEXIS 109205 (ED CA, Sept. 23, 2011), a California allowed an inmate who is a member of the House of Yahweh religion to proceed with his claim that he should be permitted to obtain kosher meals and celebrate Yahweh's Passover and Feast of Unleavened Bread.

In Prall v. Bocchini, 2011 U.S. Dist. LEXIS 108902 (D NJ, Sept. 23, 2011), a New Jersey federal district court, while dismissing most of plaintiff's claims, permitted plaintiff ( a member of Nation of Gods and Earth) to move ahead with a RLUIPA claim if he amends his complaint to name proper defendants. Plaintiff alleges that his beliefs prevent him from cooperating with the state criminal justice process, including compliance with state prison rules and regulations. He says he is being forced to renounce his religious beliefs if he wants to participate in work, rehabilitative and educational programs that will shorten his time in the Management Control Unit.

In Smith v. Wright, 2011 U.S. Dist. LEXIS 109069 (ND NY, Sept. 23, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 109058, Aug. 31, 2011) and dismissed a claim by a Rastafarian inmate that his rights were violated when he was kept in segregated housing for 7 months because of his religious-based refusal to submit to a PPD test for tuberculosis.

In Guillory v. Tilton, 2011 U.S. Dist. LEXIS 110089 (ED CA, Sept. 27, 2011), a California federal district court rejected an inmate's claim that his free exercise rights were infringed when a corrections officer removed uneaten food from his cell during Ramadan. Plaintiff had not applied through the chaplain for special permission to keep food in his cell.

In Florer v. Blakemaan, 2011 U.S. Dist. LEXIS 110044 (WD WA, Sept. 27, 2011), a Washington federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 110047, May 31, 2011) and dismissed a Jewish inmate's complaint that in the Intensive Management Unit he was denied access to certain of his religious books that were not requested through the chaplain or other approved sources.

Hasidic Group Can Move Ahead On Equal Protection Challenge In Zoning Dispute

Mosdos Chofetz Chaim, Inc. v. Village of Wesley Hills, 2011 U.S. Dist. LEXIS 109649 (SD NY, Sept. 26, 2011), involves an amended complaint filed by an Orthodox Jewish group over attempts to prevent it from operating a religious education center in Ramapo, New York. In 2004, four villages and two Ramapo residents filed a lawsuit (the Chestnut Ridge action) challenging on environmental grounds Ramapo's zoning changes that were designed to accommodate the Orthodox and Hasidic communities. Plaintiffs sued claiming that the filing of the Chestnut Ridge action was in fact an attempt to use intimidation to prevent the spread of the Orthodox and Hasidic communities. In a 2010 decision, the court dismissed without prejudice, invoking the Noerr-Pennington doctrine. (See prior posting.) Now, reviewing plaintiffs'amended complaint, the court dismissed a number of claims but refused to dismiss plaintiffs' claim that they were targeted for unequal treatment because they are Hasidic Jews. Unlike the first complaint, plaintiffs now alleged sufficient facts, if proven, to show they were treated differently than others who were similarly situated.

Kazakhstan Parliament Passes New Restrictive Religion Law

AP and On Islam both report on the passage Thursday by Kazakhstan's Senate of a new more restrictive law on religious activities. The bill must now be signed by President Nazarbayev, but that seems to be a certainty.  The law, which has been criticized by OSCE and others (see prior posting), sets 50, 500 and 5000 members respectively for local, regional and national registration of a religious group. It requires government review of all religious literature and annual registration of foreign missionaries (who can be expelled if they pose a threat to public order). The law also bans prayer rooms in all public buildings. Backers of the bill see it as a way to combat Islamic extremism, but others say it will eliminate two-thirds of the 4500 religious groups that now operate in the country. It will also complicate operations for fairly large Protestant groups now established in Kazakstan.

Military Clears Way For Same-Sex Marriage Ceremonies

In the wake of the final repeal of the military's "Don't Ask, Don't Tell" policy, the Pentagon has issued two memos that clear the way for same-sex marriages to be performed on military bases by military chaplains in states where such marriages are legal.  As reported last week by the Washington Blade, a Sept. 21 memo (full text) from DOD's General Counsel says that: "Determinations regarding the use of DoD real property and facilities for private functions, including religious and other ceremonies, should be made on a sexual-orientation neutral basis, provided such use is not prohibited by applicable state and local laws." It adds that making facilities available does not amount to DoD endorsement of the activities.

A second memo (full text) dated Sept. 30 from Under Secretary of Defense Clifford Stanley says that military chaplains "may participate in or officiate any private ceremony, whether on or off a military installation" so long as it is not prohibited by state or local law. However a chaplain is not required to do so if it "would be in variance with the tenets of his or her religion or personal beliefs."

New Saudi Textbook Reflects Islamic vs. Westernizing Tensions

According to yesterday's Jerusalem Post, Saudi Arabia's Education Ministry has published a new high school textbook titled Hadith which is strongly critical of Westernizing influences that are absorbed by Saudi students who study abroad. This attempt to interject criticism of the United Nations Human Rights agenda into sayings of the Prophet Muhammad comes at the same time that Saudi Arabia's Ministry of Higher Education is encouraging Saudi students to study abroad through the King Abdullah Foreign Scholarship Program. The problem reflects a struggle within Saudi Arabia's Education Ministry between top-level officials who hold degrees from U.S. and British universities, and their staffs who are often educated in Islamic studies from Saudi universities.

Controversy Over Air Force Academy Distribution of Memo On Religious Neutrality

As previously reported, last month Air Force Chief of Staff Gen Norton Schwartz issued a memo cautioning commanders not to use their positions to promote their personal religious beliefs to their subordinates, or to extend preferential treatment to any religion.  Now Military Religious Freedom Foundation (MMRF) researcher Chris Rodda writes that at the Air Force Academy in Colorado Springs, the memo was not distributed beyond a small group of officers until MRFF used a large billboard at a busy Colorado Springs intersection to display the full text of Gen Schwartz' memo. The Air Force Academy denies that the distribution date was connected to the billboard. God and Country blog, a critic of MMRF, says that MMRF head Michael Weinstein does not understand normal chain of command operations.

Today Is Pulpit Freedom Sunday

Today is Alliance Defense Fund's annual Pulpit Freedom Sunday, devoted to overturning provisions of the Internal Revenue Code that bar non-profit organizations (including churches) from endorsing or opposing candidates for any political office. An FAQ document explaining the initiative says that participating pastors today will preach a sermon "discussing the intersection of the political realm with scriptural Truth." ADF promises to represent, free of charge, churches or pastors under investigation by the IRS as a result. Friday's New York Times, reporting on this year's plans, says that participating ministers plan to send tapes of their sermons to the IRS, inviting a challenge. None of the churches which sent tapes in past years have been pursued by the IRS. ADF traces the history of the ban on political involvement to a 1954 Internal Revenue Code amendment pushed by then-Senator Lyndon Johnson to keep two Texas non-profits from supporting his opponent.

9th Circuit: DADT Challenge Is Now Moot

Now that Congress' repeal of the military's "Don't Ask, Don't Tell" policy has been fully implemented (see prior posting), the U.S. 9th Circuit Court of Appeals has dismissed as moot the challenge to the constitutionality of DADT.  Log Cabin Republicans v. United States, (9th Cir., Sept. 29, 2011), vacated the district court judgment that had enjoined enforcement of DADT, and remanded the case for dismissal so that the now-unappealable district court decision will have no precedential effect.  Judge O'Scannlain concurred, discussing the merits of the claim at length even though he agreed that the case was now moot. He concluded that DADT was constitutional because Congress had a rational basis for enacting it, and policies regarding military personnel decisions are not subject to a higher level of scrutiny.

"See You At the Pole" Generates Minimal Controversy This Year

This past Wednesday was the annual "See You At the Pole" event-- during which students around the country (and even in some other countries) join around the school flag pole prior to school  for a short prayer service.  This year the event generated little controversy.  Apparently the most heated issues were raised at an elementary school in Lebanon County, Pennsylvania where, according to the Harrisburg (PA) Patriot-News, the event was held at 8:40, ten minutes before school started. However the flyers that were sent out indicated an 8:50 starting time-- coinciding with the beginning of school. The flyer also contained an "opt-out" form for students who were not going to participate. But apparently the letter went out without the superintendent's approval. Also pickets from the American Atheists carried protest signs at the event, including one which read: "Don's pray in my school! I won't think in your church." In some years, publicity surrounding the event has led to litigation. (See prior posting.)

Reported Apostasy Sentence For Iranian Pastor Draws International Protests

The International Business Times yesterday compiles statements from government leaders around the world, including the White House, protesting the death sentence that was reportedly imposed by Iran on Christian pastor Youcef Nadarkhani for apostasy-- converting from Islam to Christianity.  Nadarkhani who is pastor in a house church that is part of the Church of Iran network, has refused to recant his conversion. Worthy News earlier this week, recounted the history of  the case:

His arrest is believed to have been due to his questioning of the Muslim monopoly on the religious instruction of children in Iran, rights activists say.... He was initially charged with protesting, but charges against him were later changed to "apostasy" and "evangelizing Muslims" which carry the death sentence. Nadarkhani was tried and found guilty of "apostasy", or abandoning Islam, in September 2010 and sentenced to death by the court in the city of Rasht. In June this year the Supreme Court of Iran upheld Pastor Youcef Nadarkhani’s death sentence, but asked the lower court in Rasht, which issued the initial sentence, to "re-examine" whether or not he had been a practicing Muslim adult prior to converting to Christianity. The written verdict of the Supreme Court’s decision included provision for annulment of the death sentence if Pastor Nadarkhani recanted his faith, trial observers said.

CNN reported yesterday however that Nadarkhani's lawyer, Mohammadali Dadkhah, says the case is still in progress and there is a 95% chance that the pastor will not receive the death sentence. But to confuse the situation even more, the Fars News Agency apparently reported yesterday that Nadarkhani is being charged not with apostasy, but with rape and extortion. (See prior related posting.)

President Sends Rosh Hashanah Greetings

Yesterday, President Obama videotaped holiday greetings (full text) to those celebrating the Jewish holiday of Rosh Hashanah. The New Year holiday, beginning the ten day period culminating in Yom Kippur, commences tonight.  In addition to greetings for "a sweet year full of health, happiness, and peace," the President used his statement as an occasion to reaffirm U.S. commitment to the state of Israel.

En Banc 5th Circuit: Student-to-Student Religious Speech In School Protected By 1st Amendment

Yesterday, in a complicated series of eight opinions from 16 judges spanning 100 pages, a majority of the U.S. 5th Circuit Court of Appeals, sitting en banc, held that Plano, Texas school principals had qualified immunity in a lawsuit charging them with restricting elementary school students' distribution of religious literature because the law was not clearly established.  A separate majority of the court held that the principals' actions were unconstitutional.  In Morgan v. Swanson, (5th Cir., Sept. 27, 2011), Judge Elrod wrote for the majority on the issue of constitutionality.  She said:

In short, whatever latitude school officials may have with respect to school-sponsored speech under Hazelwood, or with government-endorsed speech under the Establishment Clause—that is, speech that could be erroneously attributed to the school—outside of that narrow context, viewpoint discrimination against private, student-to-student, non-disruptive speech is forbidden by the First Amendment.....

[W]hat one child says to another child is within the protection of the First Amendment unless one of the narrow exceptions discussed above applies, and none does in this case. Accordingly, we hold that the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech.

Education Week reports on the decision.

Court Allows Religious Leaflets At Salmon Days Festival

In Ascherl v. City of Issaqua, (WD WA, Sept. 21, 2011), a Washington federal district court granted a preliminary injunction permitting plaintiff to distribute religious literature at the Salmon Days Festival held in Issaqua, Washington to celebrate the return of the salmon and promote the city to visitors. The court decclared unconstitutional a city ordinance that limited leafleting and protests to designated "expression areas" in the part of the city where the Festival was held. The court concluded that the city ordinance is not "narrowly tailored", pointing out that: "the City allows for much more congestive activities than leafleting during the Salmon Days Festival, which undermines the credibility of its professed interest in minimizing congestion and ensuring public safety." Courthouse News Service reports on the decision.

Vanderbilt At Odds With 5 Student Religious Groups Over Nondiscrimination Policy

Vanderbilt University is the latest school to face clashes between its nondiscrimination policy for recognized student groups and the membership criteria of student religious organizations. The Tennessean reported yesterday that the university has placed a dozen or so student groups, including 5 religious groups, on provisional status, asking them to come into compliance with the university's policy that bars discrimination based on sexual orientation, gender identity or gender expression. The Christian Legal Society says that the University also wants it to rewrite its policy that requires the group's president to lead Bible studies, because that would require officers to hold certain beliefs. Vanderbilt, a private school, has more leeway that public universities in regulating student groups.  The controversy has gotten contentious.  Stephen Siao, president of the Vanderbilt's Republican group says the school has launched an attack on religious groups to distance itself from its past reputation as a "Southern, white, rich and religious" enclave.

Meanwhile yesterday the University posted a statement on its website saying that only 8 student groups-- 5 of which are religious-- are not in compliance with the university's nondiscrimination policy.  It says that it iscommitted to finding a solution, but added: "Student groups that wish to practice their faith are welcome at Vanderbilt; however, it is incumbent upon them to decide whether they wish to become registered student organizations at the university."

Cantor-Synagogue Settle Dispute Over Non-Compete Clause In Time For High Holidays

The Palm Beach Post reported yesterday that Jupiter, Florida's Temple Beth Am and its former cantor, the Grammy-nominated Bruce Benson, have settled a lawsuit in which the Temple claimed that Benson was violating a non-compete clause in his contract. The Palm Beach Sun Sentinel reported Monday on a lawsuit.  Benson is planning to conduct high holiday services beginning tonight in a rented high school auditorium on behalf of his recently-formed Institute for Jewish Living. The Institute is aimed at attracting some of the many Jews in the area who are not affiliated with a synagogue.  Tickets for Benson's services are $136, while Temple Beth Am charges non-members $225 to attend high holiday services. A spokesman for Beth Am says that the High Holidays are an important way for the synagogue to raise funds and attract new members, and that Benson's services will siphon people away from Beth Am.

Benson's non-compete clause bars him from working at another synagogue in Palm Beach or Martin counties for 18 months after leaving Beth Am, and prohibits his attempting to attract members or employees from Beth Am. Benson says his Institute for Jewish Living is not a synagogue, and so he is not in violation. Benson's lawyer argues that civil courts cannot define what is or is not a synagogue.  Under the terms of the settlement agreement, Benson will not promote his services in northern Palm Beach County, from which Beth Am attracts most of its members. He is free to promote them in West Palm Beach or Boca Raton.

Supreme Court Review Sought In Two Cases

Petitions seeking Supreme Court review were filed yesterday in two cases of interest. A petition for certioarari (full text) was filed in Bronx Household of Faith v. Board of Education of the City of New York. (ADF press release.) In the case, the 2nd Circuit, in a 2-1 decision, upheld the New York Board of Education's policy that bars use of school facilities by outside groups after school hours for "religious worship services," even though facilities are available for many other kinds of activities. (See prior posting.)

A petition for certiorari (full text) was also filed in Victory Through Jesus Sports Ministry Foundation v.  Lee's Summit R-7 School District. (Liberty Counsel press release.) In the decision below, 8th Cir., May 20, 2011, (full text), the 8th Circuit held that a Missouri elementary school's limitation on the groups that could send home flyers with students was reasonable and viewpoint neutral. Only specified groups that directly benefit the school district could do so, except that any community youth organization had a one-time opportunity at the beginning of the school year to send home literature.  In this case, a group that was dedicated to using "sports as evangelism" complained about being limited to the once-per-year distribution, even though the school district did include its flyer for its summer soccer camp on the school website.

Release of Tapes of Prop 8 Trial Again On Hold

In the latest skirmish over California's Proposition 8-- the ballot measure that barred same-sex marriage-- a panel of the U.S. 9th Circuit Court of Appeals yesterday issued a stay pending appeal of a district court order that authorized release of digital recordings of the original trial on Prop 8's constitutionality. (See prior posting.) Here full text of the 9th Circuit's order in Perry v. Brown. AP reported on court's action.

U.S. Commission on Civil Rights Releases Report On Bullying In Schools

The U.S. Commission on Civil Rights today announced the release of a report titled Peer-to-Peer Violence and Bullying: Examining the Federal Response. The report develops recommendations to further address the problem of bullying and harassment based on sex, race, national origin, disability, sexual orientation, and religion in public K-12 schools. One of the issues addressed is the extent to which Title VI of the 1964 Civil Rights Act reaches bullying based on religion. The report says:

Although Title VI does not prohibit discrimination on the basis of religion, it does forbid discrimination on the basis of race, color, or national origin. Both ED [U.S. Department of Education] and DOJ [Department of Justice] have taken the position that Title VI prohibits discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics, regardless of whether those groups share a common faith.... 

Although ED enforces Title VI with respect to harassment of members of religious groups based on their shared ancestry or ethnic characteristics, Title VI itself leaves a hole in ED‘s enforcement. That is, Title VI does not protect against harassment of students based solely on their religious faith, nor does it protect against harassment of students who belong to religious groups that do not have shared ancestry or ethnic characteristics. As a result, ED cannot protect students from the ―peculiar harms created by religious bigotry. Furthermore, under current law, religious groups with shared ancestry or ethnic characteristics receive certain protections that religious groups without shared ancestry or ethnic characteristics do not receive; and would-be discriminators can evade Title VI liability by claiming that students harass based solely on religious bigotry.

Advocates urge Congress to close this ―loophole by passing legislation that protects against harassment of students based on their religion.

Extensive testimony and background materials are also available on the Civil Rights Commission's website.

New White House Petition Website Attracts Many Church-State Issues

At the beginning of this month, the White House announced its new We the People website. As reported by Politico, the site allows anyone to post a petition to the Administration to take action on an issue of concern.  If a petition garners 5000 signatures in 30 days, a working group of policy officials in the White House will respond to it.  So far, a number of the most popular petitions raise church-state issues.  A report in yesterday's Christian Post calls some of the petitions "anti-God." A petition to remove the phrase "under God" from the Pledge of Allegiance has now attracted over 13,000 signatures, and one to remove "In God We Trust" from currency has 9100.  A petition to repeal the Defense of Marriage Act has attracted 8900 signatures. A petition to "repeal the tax exemption for churches and allow them to apply like a non-profit organization" has 7300 signatures.  The petition that appears to have attracted the most signatures-- over 19,000-- calls for an investigation into allegations of prosecutorial and judicial misconduct in the case of Sholom Rubashkin. A number of other petitions on religion and church-state issues have not yet reached the 5000 signature mark. All petitions are available here.

Britain Sees Rise In Polygamy Among Young Muslims

The Australian (carrying a story from The Times) today reports that Britain is experiencing an unexpected rise in polygamy among young Muslims.  Even though polygamy is illegal in Britain, it is permitted under Shariah law and accepted in many Muslim communities.  Britain's Islamic Shariah Council says that for the first time, polygamy is among the top ten reasons that wives seek divorces. In 2010, 43 out of 700 divorce applications cited polygamy as the reason. Men take second-- or even third and fourth-- wives in three kinds of situations: (1) young men who wish to practice a more conservative form of Islam; (2) the most common situation-- failed marriages where the wife does not want a divorce and the father wants to continue seeing and supporting the children; and (3) the rarer situation in which a man's parents remain in their home country and he marries a woman there who is essentially the caregiver for his parents.

Court Refuses To Adjudicate Pastor's Claim The He Was Wrongfully Transferred

In Washington v. African Methodist Episcopal Church, Inc., (WD NY, Sept. 16, 2011), a New York federal district court dismissed on First Amendment grounds a lawsuit by a minister against his church and one of its bishops for transferring him to a new assignment without giving him the 90 days notice that The Doctrine and Discipline of the AME Church called for.  However, the Book of Discipline also provided that: "The bishop shall not have anything in this section applied which will prevent the bishop from using godly judgment in making changes in the appointments, that are deemed necessary for the good of the church." The court concluded that to adjudicate plaintiff's claim, "the Court would necessarily have to interpret the AME Church’s spiritual guidance, thus entangling itself in Defendant’s Free Exercise rights under the First Amendment." Reporting on the decision yesterday, the Rochester (NY) Democrat and Chronicle says that plaintiff, Marlowe Washington, stayed in Rochester and opened his own church rather than accepting the transfer to Queens.

ACLU Sues Virginia County Over Sectarian Prayers

The ACLU of Virginia announced yesterday that it had filed a federal court lawsuit against the Pittsylvania (VA) County Board of Supervisors over the opening of county board meetings with Christian prayer. The complaint (full text) in Jane Doe v. Pittsylvania County, Virginia, (WD VA, filed 9/26/2011), alleges that the invocation at nearly every Board of Supervisors meeting invokes the name of Jesus, and that at the meeting immediately after receiving a complaint from the ACLU, each individual commissioner delivered a prayer, all but two of which were explicitly Christian. However the Board also moved the prayer to a non-agenda item before the roll call. The ACLU has also filed a Memorandum in Support of Motion for Preliminary Injunction.

National Groups Question Obama Policy On Faith-Based Hiring

Last week, 56 major religious, educational, health and civil rights organizations sent a letter (full text) to President Obama, again asking him to clarify the Administration's position on religion-based hiring in federally funded faith-based programs. The groups oppose religious discrimination in hiring and firing for positions funded by federal dollars.  The letter follows a somewhat ambiguous response last month to similar concerns in a statement posted on the White House website by Joshua Dubois, Executive Director of The White House Office of Faith-based and Neighborhood Partnerships. (See prior posting.) [Thanks to Michael Lieberman for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Meir Katz, When is Medical Care 'Futile'? The Institutional Competence of the Medical Profession Regarding the Provision of Life-Sustaining Medical Care, (Nebraska Law Review, Vol. 90, p. 1, 2011).
• Elizabeth Rieser-Murphy and Kathryn DeMarco, No Good Deed Goes Unpunished? Alabama’s New Immigration Law – A Threat to Conservative Values (September 13, 2011).

Recent and Forthcoming Books:

• Halyna Hryn (ed.), Churches and States: Studies on the History of Christianity in Ukraine, (Harvard Univ. Press, (Oct. 2011).
• Richard Landes and Steven T. Katz (eds.), The Paranoid Apocalypse-- A Hundred-Year Retrospective on The Protocols of the Elders of Zion, (New York Univ. Press., Dec. 2011).
• Winnifred Sullivan, Robert Yelle, and Mateo Taussig-Rubbo (eds), After Secular Law, (Stanford Univ. Press, 2011).
• Christian S. Davis, Colonialism, Antisemitism, and Germans of Jewish Descent in Imperial Germany, (Univ. of Michigan Press, Forthcoming).
• Uriel I. Simonsohn, A Common Justice-- The Legal Allegiances of Christians and Jews under Early Islam, (Penn Press, Sept. 2011).
• James Howard Smith and Rosalind I. J. Hackett (eds.), Displacing the State: Religion and Conflict in Neoliberal Africa, (Notre Dame Press, Dec. 2011).

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.