Recent Prisoner Free Exercise Cases

In Muhammad v. County of Marin, 2011 Cal. App. Unpub. LEXIS 7475 (Cal. App., Sept. 29, 2011), a California state appeals court dismissed an inmate's claim that his rights under RLUIPA were violated by a probation report that stated he "converted to the Islamic religion" while previously in prison and had manipulated Islamic religious tenets "into supporting his self involved belief system."

In Murphy v. Lockhart, 2011 U.S. Dist. LEXIS 113190 (ED MI, Sept. 30, 2011), a Michigan federal district court adopted in part a magistrate's recommendations (2011 U.S. Dist. LEXIS 115758, Jan. 31, 2011) and rejected an inmate's claim that his free exercise and RLUIPA rights were violated when prison officials refused to deliver a copy of Codex Magica that had been mailed to him because it contains information on how to write letters in code.

In Knight v. Yarborough, 2011 U.S. Dist. LEXIS 113599 (CD CA, Sept. 30, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 113710, Aug. 22, 2011) and dismissed as moot an inmate's claim that he was prevented from wearing his hair in dreadlocks for religious reasons. The state's grooming policy has since been changed and also plaintiff has been transferred to a different prison.

In Pelzer v. McCall, 2011 U.S. Dist. LEXIS 113870 (D SC, Sept. 30, 2011), a South Carolina federal district court adopted a magistrate's recommendations that among other things rejected an inmate's claim that newsletters provided by the prison chaplain's office violated the Establishment Clause.  UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 117407, June 29, 2011.

In Cooper v. Evans, 2011 U.S. Dist. LEXIS 114891 (SD IL, Oct. 5, 2011), an Illinois federal district court rejected a Buddhist inmate's claim regarding "scarring" of his ovo-lacto food tray by including Jello. However he was permitted to move ahead on several claims involving access to a religious diet and use of the prison chapel.

In Halloum v. Ryan, 2011 U.S. Dist. LEXIS 114713 (D AZ, Oct. 4, 2011), plaintiff claimed his rights were violated by various limitations on his ability to practice his Muslim religion. An Arizona federal district court dismissed a number of claims, but permitted plaintiff to move ahead on claims of denial of a religious shaving waiver, refusal to distribute a copy of the Qur'an and denial of communal prayer.

In Atkins v. Christiansen, 2011 U.S. Dist. LEXIS 110394 (WD MI, Sept. 28, 2011), a Michigan federal district court modified a magistrate's recommendations (2011 U.S. Dist. LEXIS 115040, June 6, 2011) and dismissed an inmate's claims that his free exercise and RLUIPA rights were violated when he was designated as a member of a Security Threat Group because of his membership in the Nation of Islam. Prison officials said the designation came from the inmate's affiliation with a subversive group known as the "Family."

Pastor Says Christians Should Not Vote For Romney Because He Is Not A Christian

Robert Jeffress, senior pastor of the 10,000 member First Baptist Church of Dallas (TX), has created a controversy by suggesting that Christians should not vote for Republican Presidential hopeful Mitt Romney because he is a Mormon.  According to CNN, Jeffress who introduced candidate Rick Perry at the Value Voters Conference in Washington on Saturday later told a CNN correspondent:

I think Mitt Romney's a good, moral man, but I think those of us who are born-again followers of Christ should always prefer a competent Christian to a competent non-Christian like Mitt Romney. So that's why I'm enthusiastic about Rick Perry.

Jeffress also said that the Southern Baptist Convention considers Mormonism a "cult."  But, he said, there are many other reasons also not to vote for Romney.  Rick Perry later told reporters he did not think Mormonism is a cult.

Suit Challenges Austin, Texas Disclosure Requirement For Pregnancy Center

A lawsuit was filed yesterday in federal district court in Texas on behalf of Austin LifeCare, Inc., a Christian pregnancy counseling center seeking to have an Austin (TX) ordinance requiring disclosures by limited-service pregnancy centers declared unconstitutional. The complaint (full text) in Austin LifeCare, Inc. v. City of Austin, (WD TX, filed 10/6/2011), claims that Austin City Code Chap. 10-9 violates LifeCare’s freedom of speech, assembly and association,and  religion, and denies it equal protection of the laws. The Ordinance provides:

The Owner or Operator of a Limited Service Pregnancy Center shall prominently display, at the entrance of the Center, two black and white signs, one in English and one in Spanish, that state as follows: "This center does not provide abortions or refer to abortion providers. This center does not provide or refer to providers of U.S. Food and Drug Administration approved birth control drugs and medical devices."

LifeCare claims, among other contentions, that the ordinance unconstitutionally compels speech and substantially burdens its ability to serve women in accordance with its sincerely-held religious beliefs. Jubilee Campaign issued a press release announcing the filing of the lawsuit and furnishing additional background.

Muslim Student Sues Southwest Airlines For Discrimination In Removing Her From Flight

A Muslim-American graduate student at San Jose State University filed a religious discrimination lawsuit yesterday in California federal district court against Southwest Airlines.  The suit grows out of the airline's removal last March of psychology student Irum Abbasi from a flight bound for San Diego because a flight attendant though she heard Abbasi say "it's a go" on her cell phone.  In fact, Abbasi said "I have to go," because the plane was about to depart. AP reports that Abbasi was searched and cleared for reboarding, but was prevented from doing so when the crew was uncomfortable with that decision. Instead she was given a voucher and boarding pass for the next San Jose flight. The delay caused her to miss a critical research experiment that she needed to complete for her graduate studies. The lawsuit contends that Abbasi was removed under these circumstances only because she was wearing an Islamic head covering.

Christian Proselytizers Lose Most Claims Against Chicago for Location Restrictions

In Marcavage v. City of Chicago, (9th Cir., Oct. 4, 2011), a Christian outreach group, Repent America, sued claiming that their religion, free speech and equal protection rights were violated during the 2006 Gay Games in Chicago when police in three instances ordered the group to change the location of their activities.  The court held that police orders given at two locations were content neutral and narrowly tailored to prevent interference with pedestrian traffic. Two of the 3 judges held that claims as to plaintiff's treatment at Gateway Park, adjacent to Navy Pier, should be remanded for further clarification of the reasons for the city's permit policy there. Courthouse News Service reports on the decision. (See prior related posting.)

Fired Ohio Science Teacher Loses Bid For Additional Hearing

An Ohio common pleas court judge has ruled that fired middle-school science teacher John Freshwater is not entitled to an additional hearing on his dismissal for teaching creationism and promoting Christian religious beliefs in class. According to yesterday's Columbus Dispatch, the judge, after reviewing the 6,344 page long hearing transcript, ruled that Freshwater's request for additional hearings is not well taken. (See prior related posting.)

Settlement Reached On Religious Head Coverings In Georgia Court

The ACLU of Georgia announced yesterday that a settlement has been reached in a lawsuit against the city of Douglasville, Georgia brought last year by a Muslim woman who was told she could not enter a municipal courtroom unless she removed her hijab (religious headscarf). She was held in contempt and temporarily jailed when she got in an argument with security guards. (See prior posting.) Under the settlement, the city has adopted a new screening policy (full text) for those entering the court with a head covering worn for religious or medical reasons. Where security requires removal of the head covering, the individual may do so in a private area in the company of a same-gender security guard. After this screening, the individual may place the head covering back on. For individuals detained, full face arrest photos may be taken with the person wearing his or her head covering.

Former Security Agency Employee Sues Claiming Discrimination Because of Wife's Religious Activities

AP reported yesterday that an employment discrimination lawsuit has been filed in a Virginia federal district court against the National Geospatial-Intelligence Agency by a former employee who alleges that his security clearance was revoked solely because of his wife's Muslim religion, her constitutionally protected speech and her association with a faith-based Islamic organization. Plaintiff Mahmoud Hegab, who worked as a budget analyst, says his top-secret clearance was revoked in November after he got married because officials were concerned about his wife's schooling at the Islamic Saudi Academy in Virginia, her employment with the Islamic charity Relief USA, and her participation in a 2003 anti-war rally sponsored by a group that has worked together at times with Palestinian activists.

Ohio Prison Response To Muslim Food Issue Threatens Suit By Pork Producers

AP reported yesterday that the Ohio prison system finds itself with threatened lawsuits from competing directions as it attempts to respond to demands of Muslim inmates for Halal food. When Muslim inmates sued seeking to have access to non-pork meat products slaughtered according to Islamic law, Ohio responded by merely removing pork from all prison menus.  Now the Ohio Pork Producers Council is threatening to sue to challenge the prisons' removal of pork products.  All of this is a bit puzzling, since Muslim inmates were not seeking removal of pork, but instead access to pre-packaged Halal meals, similar to meals served in the kosher meal program. And the $27,000 per week of pork rib patties served in the prisons are furnished by a Michigan company so that removal of this does not affect Ohio producers.

Equal Access For Bible Club Does Not Require School-Furnished Paid Adviser

In Youth Alive v. Hauppauge School District, 2011 U.S. Dist. LEXIS 113628 (ED NY, Sept. 30, 2011), an extracurricular student Bible club at a New York high school complained that its rights were being violated when the school insisted on its having a volunteer monitor instead of a paid staffer that is furnished to other groups to supervise its meetings.  The group contended that an unpaid adviser will cancel meetings at a greater rate than would a paid staff person.  A New York federal district court held that the federal Equal Access Act does not require the school district to provide a paid adviser.  The court also held that the refusal to provide a paid adviser does not substantially burden the group's free exercise of religion or infringe its free speech rights.  However it found that the parties' briefing leaves open a question of fact as to plaintiff's equal protection claim, as well as the claim for nominal damages from the group's treatment during its initial formation.

Muslim Scholars Criticize Female Shariah Magistrates In Kenya

On Islam reported yesterday that in Kenya, Muslim scholars are critical of a decision by Kenyan Chief Justice Willy Mutunga to create the position of female magistrate in the nation's Islamic courts.  There are 17 Kadhis courts in Kenya which deal with matters of personal status such as marriage, divorce and inheritance. Under Kenya's 2010 constitution, Kadhis courts are part of the government court system, subordinate to superior courts. Egypt, Tunisia, Sudan, and Turkey all have female Shariah court magistrates. (See prior related posting.)

Supreme Court Hears Oral Arguments In Hosanna-Tabor Case

The U.S. Supreme Court today heard oral arguments (full transcript) in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In the case, the 6th Circuit refused to apply the "ministerial exception" to a retaliation claim under the Americans With Disabilities Act brought by a parochial school teacher. Answering a question from Justice Ginsburg, Douglas Laycock, representing the school, argued for broad coverage of the ministerial exception doctrine, saying:

If she's commissioned as a minister and if that is not a sham, then we think that makes her a minister. If you have a Jesuit teaching physics, we think he is still a priest and he is still controlled by the ministerial exception....

JUSTICE GINSBURG: ... did I understand you before, in response to Justice Sotomayor and Justice Scalia, that even if she were merely a contract teacher, the fact that she teaches religion classes would be enough for her to qualify for the ministerial exception? 

 MR. LAYCOCK: Yes. And the fact that she's a commissioned minister is the clincher in this case.

Justice Scalia then probed the meaning of "commissioned minister:

JUSTICE SCALIA: And that term is a legal term. What constitutes a minister is -- is decided by the law, not by the church, right?

MR. LAYCOCK: That is correct.

The government, represented by Assistant to the Solicitor General Leondra Kruger urged the Court to take an approach that does not focus on the traditional "ministerial exception" tests:

MS. KRUGER: The contours -- the inquiry that the Court has set out as to expressive associations we think translate quite well to analyzing the claim that Petitioner has made here. And for this reason, we don't think that the job duties of a particular religious employee in an organization are relevant to the inquiry.

... the government's interest in this case is not in dictating to the church-operated school who it may choose to teach religion classes and who it may not. It is one thing and one thing only, which is to tell the school that it may not punish its employees for threatening to report civil wrongs to civil authorities. That is an interest that we think overrides the burden on the association's religious message about the virtues of internal dispute resolution as opposed to court resolution.

The merits and amicus briefs in the case are available online. ScotusBlog has a summary of the arguments.The Los Angeles Times also reports on the oral arguments.

USCIRF Reauthorization Bill Still Pending [CORRECTED]

The U.S. Commission on International Religious Freedom was scheduled to go out of business last week.  22 USC Sec. 6436 originally provided that USCIRF "shall terminate on September 30, 2011." A reauthorization bill, HR 2867, passed the House on Sept. 15 and is now pending in the Senate. The reauthorization bill would reduce the number of Commission members from 9 to 5. However USCIRF was saved by provisions in two separate Continuing Appropriations Acts (HR2017 and HR2608). Both extended the life of USCIRF. HR 2017, signed by the President on Sept. 30, extended the Commission's life to Oct. 4.  HR2608, signed by the President on Oct. 5 extended USCIRF to Nov. 18. So USCIRF remains in business for now. An opinion piece in yesterday's Huffington Post by Suhag Shukla, Managing Director of the Hindu American Foundation, suggests that greater reform of USCIRF is needed.  She argues that the Commission's history causes it to focus disproportionately on persecution of Christian minorities. [Thanks to Don Byrd for the lead.]

School's Exclusion of Good News Club From Enrichment Program Upheld

In Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1, 2011 U.S. Dist. LEXIS 113380 (D MN, Sept. 30, 2011), a Minnesota federal district court refused to issue a preliminary injunction to require school officials to include the Good News Club in the school district's formal After-School Youth Enrichment Program that includes school publicity, busing and snacks for participants. Instead GNC was allowed to use school space as a Community Partner, but was denied other benefits furnished to groups in the program. The court said:

CEF has cited no cases in which a court found proselytizing and prayer proper content for school-sponsored speech. Here, the District has at most engaged in content discrimination, in keeping religious prayer and proselytizing from the limited designated public forum of the After-School Program, while at the same time providing after-school facilities to CEF as a community partner....

Although it is a close question, on balance the Court finds it likely that the organizations participating in the After-School Program engage in school-sponsored public speech. Such organizations are selected by the District for additional benefits separate from those of the larger group of CPs, the forms, flyers, and other information communicated to parents bear the logos and information of District employees, and the Site Coordinators exercise some control over the content of the After-School Program. Further, an objective observer, including the parents of After-School Program attendees, could reasonably believe that a religious program held on school grounds, for which they gave permission on a sheet including other school-sponsored activities, and which involves travel on a school bus, has the imprimatur and support of the school itself.

Canada Considers Creating Office of Religious Freedom In Foreign Affairs Ministry

Catholic Register reported that on Monday Canada's Foreign Affairs Minister John Baird, with 100 religious leaders present, opened formal consultations on creation by Canada of an Office of Religious Freedom. In his remarks (full text) Baird said in part:

This office will be created to promote and protect freedom of religion and belief, consistent with core Canadian values such as freedom, democracy, human rights and the rule of law. Most importantly, it will demonstrate that Canada truly is a free society.

CBC News has additional background.

Indian Court Says Temple Board Must Be Open To Lower Castes

In Thrissur, the cultural capital of the Indian state of Kerala, a court has ruled that membership in the governing board of the Thiruvambady temple cannot be limited to upper caste Hindus, but must be open to all castes.  The Pioneer reported today that the bylaws of the Thiruvambady Devaswom Board currently allow 1300 board members, limited to upper class Hindus from three specified areas.

Recent Prisoner Free Exercise Cases

In Deville v. Crowell, 2011 U.S. Dist. LEXIS 111107 (D KA, Sept. 28, 2011), a Kansas federal district court rejected claims by a federal inmate seeking group religious services reflecting his Creativity Prison Ministries (White Nationalist) beliefs, as well as his complaint that he was not receiving the Common Fare diet.

In Yassin v. Corrections Corporation of America, 2011 U.S. Dist. LEXIS 110393 (SD CA, Sept. 27, 2011), a California federal district court permitted a Muslim inmate to move ahead with his claim that refusal to provide him a halal diet violated his free exercise, equal protection and RFRA rights.

In Dean v. Hazewood, 2011 U.S. Dist. LEXIS 110890 (ED CA, Sept. 27, 2011), a California federal magistrate judge permitted a Muslim inmate to move forward with his claim that his free exercise and privacy rights were violated when he was subjected to an unclothed body search in front of a female correctional officer.

In Hopson v. TDCJ-CID, 2011 U.S. Dist. LEXIS 111387 (ED TX, Sept. 29, 2011), a Texas federal district court dismissed as moot an inmate's complaint that Native American prisoners are not permitted to gather for group worship, because now a contract chaplain has been hired. The court held that plaintiff had failed to exhaust his administrative remedies in connection with complaints about the lack of pipe ceremonies and oral teachings, smudging, access to non-desecrated religious prayer paraphernalia and honoring of Native American memorial days. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 116466, Aug. 12, 2011.

In McKinley v. Maddox, 2011 U.S. Dist. LEXIS 111307 (WD OK, Sept. 28, 2011), an Oklahoma federal district court held that an inmate's free exercise rights were not substantially burdened by a temporary delay in approving his attending off-site church services. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 116292, Aug. 8, 2011.

In Schuh v. Michigan Department of Corrections, 2011 U.S. Dist. LEXIS 112540 (WD MI, Sept. 30, 2011), a Michigan federal district court rejected a defendant's complaint that his rights were violated when he was denied kosher meals until he showed that he had a sufficient and sincere understanding of the Jewish faith. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 115692, Feb. 11, 2011.

In McChesney v. Hogan, 2011 U.S. Dist. LEXIS 112525 (ND NY, Sept. 30, 2011), a New York federal district court permitted a civilly committed inmate who is an atheist to move ahead with his claims that his required sex offender treatment program is based in part on religious tenets in violation of the Establishment Clause and of his free exercise rights.

In Moore v. Cucchi, 2011 U.S. Dist. LEXIS 112582 (D NJ, Sept. 29, 2011), a New Jersey federal district court rejected a Buddhist inmate's free exercise and RLUIPA claims regarding problems with his vegetarian diet.

Court Approves Minnesota Department of Education Settlement In TiZA Suit

The ACLU of Minnesota announced Monday that a Minnesota federal district court has approved a Settlement Agreement (full text) with the Minnesota Department of Education in ACLU v. Tarek ibn Ziyad Academy. The lawsuit claims that TiZA, a publicly-funded Minnesota charter school violated the Establishment Clause by promoting Islam. (See prior posting.) Under the settlement, the court approved release of a 29-page Stipulation of Facts (full text) compiled by the ACLU, the Department of Education, and Islamic Relief USA (the charter school's former sponsor). The stipulation illustrates various incidents in which public funds or the school's operations appear to have furthered Islam or Muslim religious organizations.  Under the Settlement Agreement, the Department of Education also agreed that in the future it will require every charter schools to provide annual written assurances (full text of required assurances) that it is operating in a non-sectarian manner and provides equal treatment and equal access for all religions. (See prior related posting.)

EEOC Sues Over Firing of Jehovah's Witness Employee Who Would Not Raise Flags

Pacific News Center reports today that the U.S. Equal Employment Opportunity Commission has filed an employment discrimination lawsuit against Aviation Concepts, an aircraft retailer and service provider in Guam. The suit charges that the company refused to accommodate the religious beliefs of a Jehovah's Witness employee.  The employee, a mechanic, was fired after he refused an order from his manager to raise the U.S. and Guam flags at the work site. Raising the flags would violate the employee's religious beliefs. The company denied the charges.

Muslim Woman Sentenced For Contempt After Refusing To Rise In Courtroom

A 35-year old Muslim woman on trial in Minneapolis on charges of funneling money to a Somali terrorist group has been held in contempt of court for refusing on religious grounds to rise when the judge and jury entered the courtroom. AP reported  yesterday that defendant Amina Farah Ali was sentenced to 50 days in jail on the contempt charges, subject to purging of the charges if Ali changes her mind after conferring with Muslim religious authorities. Ali says she will not stand up for anyone except Allah.

UPDATE: Here is the full text of the judge's opinion in United States v. Ali, (D MN, Oct. 3, 2011), finding Ali in contempt. Volokh Conspiracy had additional analysis of the case.

California Bars Localities From Regulating Circumcision

As reported by yesterday's Christian Post, California Governor Jerry Brown last week signed
assembly Bill 768 (full text) which prohibits any city or county government in California from prohibiting or restricting male circumcision or a parent's authority to have a child circumcised. The legislation is a reaction to attempts earlier this year in San Francisco and Santa Monica to obtain voter approval for circumcision bans, including religious circumcision. (See prior related posting.)

Accused Pastor Seeks Return of Settlement Funds For Breach of Confidentiality Agreement

As previously reported, last May prominent Atlanta (GA) pastor Bishop Eddie Long, his LongFellows Youth Academy and his New Birth Missionary Baptist Church settled four civil lawsuits by men who alleged that Long used his spiritual authority to coerce young male members and employees of his mega-church into sexual relationships.  The settlement agreements contained confidentiality agreements.  Last month, nevertheless, in an interview with the Atlanta Journal Constitution, two of the four men spoke about their charges against Long.  Now, according to last Friday's Atlanta Journal Constitution, Long and his church are seeking return of at least $900,000 from 3 of the plaintiffs who settled on the ground that they violated terms of the confidentiality agreement that was part of the settlement.

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.