North Carolina Supreme Court Upholds Campus Police Power On Religiously Affiliated Campus

In State v. Yencer, (NC Sup. Ct., Nov. 10, 2011), the North Carolina Supreme Court upheld North Carolina's Campus Police Act against an Establishment Clause challenge. At issue was the power of the campus police at Davidson College, a Presbyterian Church-affiliated liberal arts college. The state court of appeals, relying on earlier state Supreme Court precedent, had held it unconstitutional for the state to delegate police powers to a religious institution. (See prior posting.) However the Supreme Court disagreed, concluding that the earlier cases  relied upon by the court of appeals pre-dated the enactment of the Campus Police Act which added provisions to ensure neutral, uniform enforcement of the law by campus police.  The Supreme Court held:

this is not a case in which a statute delegates unbridled discretionary governmental powers to a religious organization. The delegation of limited power to campus police officers here “does not result in an 'excessive' entanglement that advances or inhibits religion.

The Burlington Times-News reports on the decision.

Religious College Sues To Challenge New Federal Regs On Insurance Coverage For Women

A Benedictine Catholic liberal arts college located in North Carolina filed suit yesterday challenging on 1st Amendment, RFRA and other grounds federal regulations issued in August that require all group health insurance plans to cover FDA-approved contraceptive methods, sterilization procedures, and counseling for women with reproductive capacity. While certain religious employers are exempt from the requirements, that exemption is too narrow to cover many religiously sponsored colleges. (See prior posting.) The complaint (full text) in Belmont Abbey College v. Sebelius, (D DC, filed 11/10/2011), alleges in part:

Plaintiff Belmont Abbey College is a small religious college, whose religious beliefs forbid it from participating in, paying for, training others to engage in, or otherwise supporting contraception, sterilization, or abortion..... The government’s Mandate unconstitutionally coerces Belmont Abbey College to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also forces Belmont Abbey College to fund government-dictated speech that is directly at odds with its own speech and religious teachings. Having to pay a fine to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American,unprecedented, and flagrantly unconstitutional.

Becket Fund issued a press release announcing the filing of the lawsuit.

31 Convicted In India of 2002 Murders In Religious Riots

In India on Wednesday, according to AFP, a court handed down verdicts in the trial of 73 Hindus accused of killing Muslims in religious rioting in the state of Gujarat in 2002.  The rioting followed a train fire that killed Hindu pilgrims.  31 of the defendants were found guilty of murder and arson in the killing of 33 Muslims who had sought shelter in a small house that was set on fire. 42 of the defendants were acquitted for lack of evidence. The Gujarat government has been accused of tacitly supporting the Hindu rioters.

Court Refuses To Order Town To Allow Eruv

In East End Eruv Association, Inc. v. Village of Westhampton Beach, (ED NY, Nov. 3, 2011), a New York federal district court refused to issue a preliminary injunction to prevent the Town of Southampton (NY) from interfering with a Jewish group's constructing an eruv (symbolic boundary) by attaching plastic strips to utility poles. Utility companies that owned the poles had negotiated arrangements to permit the eruv, if required permits were obtained. The court held that the case was not ripe because plaintiffs had not applied to the town for a permit or variance. Doing so would allow the town to decide whether or not its sign ordinance applied to the eruv.  The court went on to hold that even if the case was ripe, plaintiffs had not shown a likelihood of success on the merits of their free exercise claims under the 1st Amendment or RLUIPA. The sign ordinance is a neutral law of general applicability, and the record does not show selective enforcement. No RLUIPA claim lies because plaintiffs have shown no property interest in any land involved. Since no relief was available against Southampton, so the eruv could not now be built, the court denied without prejudice motions for preliminary injunctions against two other towns through which the eruv would run. Westhampton- Hampton Bays Patch and 27 East report on the decision. (See prior related posting.)

Texas City's Food Ordinance May Infringe Group's Religious Liberty

In Big Hart Ministries Association, Inc. v. City of Dallas, (ND TX, Nov. 4, 2011), religious groups that drive around the city of Dallas looking for homeless individuals with whom to share food challenged the city's Food Establishments Ordinance. They contend that by requiring a pre-approved location for groups that feed the homeless, the Ordinance restricts their ability to practice their religious beliefs that call for spontaneous sharing of food and for seeking out the hungry in hard to reach locations. The court concluded that plaintiffs had alleged enough that a reasonable jury might find a substantial burden on plaintiffs' free exercise of religion in violations of the Texas Religious Freedom Restoration Act. The court therefore denied the city's motion for summary judgment.

Maryland Catholic Leaders Issue Statement On Religious Liberty

Catholic Review reported yesterday on a lengthy statement on free exercise of religion signed by Archbishop Donald Cardinal Wuerl, Archbishop Edwin O'Brien and Bishop W. Francis Malooly-- the heads of the dioceses that encompass the state of Maryland. (Full text of statement.) The document reviews the history of free exercise, and the threats to religious liberty that are of concern to the Catholic Church.

Polish Political Party Wants Cross Removed From Parliament

BBC News yesterday reported that in Poland, the Palikot Movement-- the third largest party in parliament-- has filed a formal request with the speaker of the parliament to remove the cross that hangs in the Sejm, the lower house of parliament.  In making the controversial request, the party urged: "The Republic of Poland is a secular state whose authorities ... should remain impartial on religion and philosophical matters." Palikot has been highly critical of the Catholic Church's involvement in Poland's government. (See prior related posting.)

Christmas Tree Promotion Order Withdrawn After It Is Panned As A Tax On Christmas Trees

The Washington Post yesterday reviewed details of the one of the first salvos in this year's "Christmas wars." At the urging of an industry group representing producers and importers of fresh cut Christmas trees, the Department of Agriculture published in the Federal Register this week an order under the Commodity Promotion, Research, and Information Act of 1996 establishing a national Christmas Tree Promotion Board.  Rules promulgated by the order assess a fee of fifteen cents per Christmas tree on producers and importers, with the proceeds being used by the Christmas Tree Promotion Board to urge consumers to buy fresh cut, rather than artificial, trees. The order quickly began being characterized on conservative Internet sites as an Obama administration tax on Christmas trees. (See The Foundry.) Ilya Shapiro writing at Cato@Liberty opined: "there are obvious Free Exercise and Equal Protection issues here. That is, unless we consider Christmas trees to be wholly secular, this is an obvious burden on the free exercise of Christianity, and one that no other religion faces." By late yesterday, Fox News reported that a White House spokesman said that the program is being withdrawn.

USCIRF Issues Study On Education and Religious Discrimination In Pakistan

The U.S. Commission on International Religious Freedom yesterday issued a 139-page study (full text) titled Connecting the Dots: Education and Religious Discrimination in Pakistan-- A Study of Public Schools and Madrassas. As summarized by USCIRF release on the report, the study found:

• Public school textbooks used by all children often had a strong Islamic orientation, and Pakistan’s religious minorities were referenced derogatorily or omitted altogether;
• Hindus were depicted in especially negative terms, and references to Christians were often inaccurate and offensive;
• Public school and madrassa teachers had limited awareness or understanding of religious minorities and their beliefs, and were divided on whether religious minorities were citizens;
• Teachers often expressed very negative views about Ahmadis, Christians, and Jews, and successfully transmitted these biases to their students;
• Interviewees’ expressions of tolerance often were intermixed with neutral and intolerant comments, leaving some room for improvement.

Dresser Rand Settles Religious Accommodation Suit By EEOC

The EEOC announced Tuesday a settlement in a religious discrimination suit that had been filed in federal court in New York against equipment manufacturer Dresser Rand. Harry Davis, a Jehovah's Witness employed by the company, refused for religious reasons to work on weapons of war-- specifically he refused to work on a part for a submarine. The company refused his request that he be transferred to work on a different piece of equipment, and then fired him. Under the consent decree, which still requires court approval, Dresser Rand agreed to pay Davis $110,000. It has also changed its EEO policy, will conduct anti-discrimination training and post notices regarding anti-discrimination laws.

British Court Holds That Bishop May Be Vicariously Liable For Sex Abuse By Priest

Yesterday's Irish Examiner reports that a judge in Britain's High Court of Justice has ruled that the nature of the relationship between a priest and the Catholic Church is one that can give rise to vicarious liability of the diocesan bishop for sexual abuse committed by the priest.  In JGE v. English Province of Our Lady of Charity, (High Ct. QB Div, Nov. 8, 2011), Mr. Justice MacDuff wrote:

I am satisfied, as I have already noted, that the relationship between Father Baldwin and the Defendants was significantly different from a contract of employment; no real element of control or supervision, no wages, no formal contract and so on. But are those differences such that the Defendants should not be made responsible for the tortious acts of the priest acting within the course of his ministry? There are, it seems to me, crucial features which should be recognised. Father Baldwin was appointed by and on behalf of the Defendants. He was so appointed in order to do their work; to undertake the ministry on behalf of the Defendants for the benefit of the church. He was given the full authority of the Defendants to fulfil that role. He was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as representative of the church. He had been trained and ordained for that purpose. He had immense power handed to him by the Defendants. It was they who appointed him to the position of trust which (if the allegations be proved) he so abused....

In this case, the empowerment and the granting of authority to Father Baldwin to pursue the activity on behalf of the enterprise are the major factors. In my judgment, whether or not the relationship may be regarded as “akin to employment” the principal features of the relationship dictate that the Defendants should be held responsible for the actions which they initiated by the appointment and all that went with it.

However defendant was granted leave to appeal.

Arkansas Will Beef Up Inspection of State-Subsidized Pre-Schools On Church-State Issues

Following up on a complaint last week by Americans United, the Arkansas Department of Human Services says it will change its inspection checklist for pre-kindergarten schools funded under the Arkansas Better Chance (ABC) program to assure compliance with church-state restrictions.  The Arkansas News reported Monday that an inspector who visited the Growing God's Kingdom pre-school in West Fork, Arkansas found religious pictures and posters, and a schedule that includes Bible study and Bible song sessions. The school received $534,000 in ABC funds this year, and over $1 million since 2005. Meanwhile, according to a report by the Fort Smith Times Record, two state legislators who own state-funded pre-schools that include religion in the curriculum contend that teaching religion is permissible so long as it is done outside the 7.5 hours of instruction funded by the ABC program. [Thanks to Don Byrd for the lead.]

Texas Allows Gun Safety Instructor To Continue After Non-Discrimination Pledge

The Syracuse Post-Standard reported yesterday that the Texas Department of Public Safety will not revoke the certification of gun instructor Crockett Keller as a qualified hand gun instructor now that Keller has agreed not to discriminate in the future. Keller offers certified courses for individuals applying for a license to carry a concealed handgun.  Keller became the center of controversy after he included as part of a radio commercial for his gun safety class a disclaimer that said:

If you are a socialist liberal and/or voted for the current campaigner-in-chief, please do not take this class. You’ve already proven that you cannot make a knowledgeable and prudent decision as required under the law. Also, if you are a non-Christian Arab or Muslim, I will not teach you the class. Once again, with no shame, I am Crockett Keller.

Mississippi Personhood Amendment Defeated

Mississippi's proposed Personhood Amendment failed at the polls yesterday. According to the Jackson Clarion-Ledger, with 96% of the polls reporting, 58% voted against and 42% voted in favor of the proposal.  CBS News says that concern over the amendment's effect on fertility treatments was a major factor in its defeat. The proposed amendment defined a "person" as "every human being from the moment of fertilization, cloning, or the functional equivalent thereof." (See prior related posting.)

Controversial Navy Chaplain Sues For Reinstatement and Back Pay

Former Navy chaplain Gordon James Klingenschmitt, who has been in a long-running battle with the military over regulation requiring chaplains to deliver inclusive prayers at military events other than religious services, has filed suit in the U.S. Court of Federal Claims seeking back pay, restoration to active duty and removal of a court martial conviction and a letter of reprimand from his service record.  Klingenschmitt insisted he had a right to pray "in Jesus name" whenever he led prayers. (See prior related posting.) The complaint (full text) in Klingenschmitt v. United States, (Ct. Fed. Cl., filed 11/1/2011), contends that the various actions taken against him violate the Religious Freedom Restoration Act. World Net Daily reported on the lawsuit yesterday.

D.C. Circuit Upholds Health Care Reform, Giving Short Shrift To Religious Freedom Argument

The D.C. Circuit Court of Appeals today upheld the constitutionality of the Affordable Care Act, last year's federal health care reform law.  In Seven-Sky v. Holder, (DC Cir., Nov. 8, 2011), the majority opinion, the concurrence and the dissent focused virtually all of their attention on (1) whether the Anti-Injunction Act bars a pre-enforcement challenge to the individual mandate; and (2) whether Congress had authority under the commerce clause to impose the mandate.  The majority opinion, written by Judge Silberman, found that the Anti-Injunction Act is not a bar to the lawsuit and that Congress acted within its commerce clause powers. Judge Edwards filed a short concurring opinion. Judge Kavanaugh dissented concluding that the Anti-Injunction Act creates a jurisdictional bar to the court deciding the case at this time.

In the case, plaintiffs also invoked the Religious Freedom Restoration Act, arguing that the requirement they purchase health insurance conflicts with their Christian faith by insisting they perform an act that implies they doubt God's ability to provide for their health. The district court (see prior posting) spent 5 pages rejecting that argument. In today's opinion, Judge Silberman disposed of the RFRA argument in a footnote (fn. 4):

We affirm the dismissal of appellants’ Religious Freedom Restoration Act claim, because we agree with the district court’s reasoning that appellants failed to allege facts showing that the mandate will substantially burden their religious exercise.

The White House blog noted the decision.

Lastest Flap Over Prayer Surrounds Proposed Plaque At World War II Memorial

Another battle over government recognition of religion appears to be developing in connection with H.R. 2070, the World War II Memorial Prayer Act of 2011.  The proposed law would add a plaque with Franklin Roosevelt's D-Day Prayer to the World War II Memorial in Washington.  At a hearing on the bill held last week, Robert Abbey, director of the Bureau of Land Management, testified (full text of prepared statement) in part:

The Commemorative Works Act specifically states that a new commemorative work shall be located so that it does not encroach upon an existing one. It is not a judgment as to the merit of this new commemoration, simply that altering the Memorial in this way, as proposed in H.R. 2070, will necessarily dilute this elegant memorial’s central message and its ability to clearly convey that message to move, educate, and inspire its many visitors. The Department strongly believes that the World War II Memorial, as designed, accomplishes its legislated purpose to honor the members of the Armed Forces who served in World War II and to commemorate the participation of the United States in that conflict. It should not be altered in the manner suggested by H.R. 2070.

He added that the National Capital Memorial Advisory Commission and the American Battle Monuments Commission agreed with BLM's position.

Now, however, according to Fox News last week, "Republican lawmakers and conservative activists are expressing outrage" at BLM's opposition.  Rep. Bill Johnson, sponsor of the legislation, said: "For there to be objections to demonstrating a faith in God at critical points in our nation's history -- particularly D-Day -- boggles my mind." And Tony Perkins, president of the Family Research Council, said: "This is further evidence that the administration has created an environment that is hostile towards American history -- but in particular towards Christianity."

Court Finds Employee Was Offered Religious Accommodation

In Antoine v. First Student, Inc., (ED LA, Nov. 4, 2011), a Louisiana federal magistrate judge held that a company which operated school buses for Jefferson Parish, Louisiana had attempted to reasonably accommodate the religious needs of a Seventh Day Adventist bus driver.  The court rejected plaintiff's Title VII religious discrimination claim, finding that the company allowed him to swap his Friday afternoon route with a volunteer, or find a volunteer to cover the route. The company claimed that other alternatives would have violated its collective bargaining agreement. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

New Tunisian Constitution Will Not Call For Shariah Law

In Tunisia, Rachid Ghannouchi, head of the moderate Islamic Ennahda party that won 40% of the seats in Parliament in last month's elections, says that the country's new constitution will not make reference to Shariah or Islamic law.  According to Bikya Masr yesterday, all parties have agreed to keep the old constitution's Art. 1 that provides: "Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic and its type of government is the Republic." However there will be no other mention of religion in order to maintain a secular interpretation of law in the country. (See prior related posting.)

Supreme Court Refuses Review In Jehovah's Witness Challenge To Controlled Access Law

The Supreme Court today denied certiorari in Watchtower Bible and Tract Society of New York, Inc. v. Segardia de Jesus, (Docket No. 11-26, cert. denied 11-7-2011). (Order List). In the case, the 1st Circuit dismissed a facial challenge brought by the Jehovah's Witnesses to Puerto Rico's Controlled Access Law, but vacated the trial court's order denying injunctive and declaratory relief on an "as applied" challenge to the law. The challenged statute -- a crime control measure-- authorizes municipalities to grant permits to neighborhood homeowners' associations (urbanizations) so they can control vehicular and pedestrian access to the neighborhood. The Jehovah's Witnesses say this has prevented them from entering neighborhoods to engage in religious proselytizing. (See prior posting.)

Hospital Sues Over Whether It Is A Public Agency-- Church-State Implications

As previously reported, church-state questions are being raised in Kentucky regarding the agreement for the proposed merger of Louisville's University Hospital with two other Kentucky health care systems to create a state-wide network that would be controlled by Catholic Health Initiatives. All of the participating hospitals have agreed to follow Catholic health care policies. The University claims that the hospital is not a public institution so that the church-state issue is irrelevant. Now, according to yesterday's Louisville Courier-Journal, a related state lawsuit has been filed that will bear on that question.  The ACLU and various news organizations have requested documents related to the merger under the state's open records law, and the attorney general last month ruled that the hospital is a public entity that is subject to that law. Now University Hospital has sued to avoid turning over records on the ground that it is not a public agency subject to the open records requirements, but instead is a private non-profit corporation.

Church Violates Fair Housing Act In Trying To Set Up Sex Offender Program

Florida's sexual offender law, FL Stat Sec. 947.1405(7)(a)(2), provides that certain sex offenders who have been conditionally released from prison may not live, among other places, within 1000 feet of a public school bus stop. Matthew25Ministries, a prison ministry that has developed an after-care program for those charged with sex crimes, leased all the units in Pelican Lake Village apartments, a Palm Beach County (FL) apartment complex, intending to sublease them to sex offenders as they became available. However it could not do so while a school bus stop was located at the site.  The Ministry was unsuccessful in getting the school bus stop moved. Therefore it told families with children living in the apartment complex that they would be required to move out. Presumably that would eliminate the bus stop. The affected families filed suit in federal district court charging violations of the federal Fair Housing Act (42 USC 3604) that prohibits discrimination in rentals on the basis of familial status. In two opinions (full text 1,  full text 2) in Whyte v. Alston Management, Inc., (SD FL, Nov. 1, 2011), a Florida federal district court held that Matthew25Ministries, as well as the real estate management companies involved and their employees, are liable for violations of 42 USC 3604(a)-(c). Last Friday's Palm Beach Post reports on the decisions.

Recent Articles of Interest

From SSRN:

• Ruth E. Gavison, The Law of Return at Sixty Years: History, Ideology, Justification, (October 31, 2011).
• William J. Haun, A Standard for Salvation: Evaluating 'Hybrid Rights' Free-Exercise Claims, (November 1, 2011).
• Richard Albert, The Constitutional Politics of the Establishment Clause, (Chicago-Kent Law Review, Vol. 87, No. 1, 2012).
• Wendy S. Goffe, An Estate Planners Roadmap to the Valley of the Shadow of Death: Health Care Directives from Religious Perspectives. Fear No Evil, (November 3, 2011).
• Matthew Hood, John R. Nofsinger and Abhishek Varma, Conservation, Discrimination, and Salvation: Investors' Social Concerns in the Stock Market, (November 4, 2011).

From SmartCILP:

• Helen M. Alvare, Bishops v. Nuns in Jeeps? Why a Facially "Intra-Catholic" Health Care Dispute Matters, [Abstract], 25 Notre Dame Journal of Law, Ethics and Public Policy 563-591 (2011).
• Bishop Thomas John Paprocki, Caring for the Sick: The Catholic Contribution and Its Relevance, [Abstract], 25 Notre Dame Journal of Law, Ethics and Public Policy 447-461 (2011).
• Redeeming Law: Christian Calling in the Legal Profession. Keynote addresses by J. Budziszewski and Michael P. Schutt; panel participation with Janet Epp Buckingham, Roger Alford and Brad Jacob, moderators; Teresa S. Collett, Santiago Legarre, Gabriel Mora-Restrepo, Ken Starr, Zhang Shoudong, Kwame Frimpong, Li-Ann Thio and Vilma C. Balmaceda, panelists. 7 Regent Journal of International Law 1-163 (2009).

Trade Group Wants Court To Bar Utah Legislators From Considering Mormon Views In Enacting Liquor Laws

Utah's Senate Bill 314, signed by the governor last March, imposes new limitations on liquor licenses and the sale of alcoholic beverages. Among other things, it eliminates discount pricing of alcoholic beverages offered by social clubs and links the issuance of liquor licenses to social clubs to both population quotas and the number of public safety officers employed by the State of Utah. As reported by Fox News last week, in June the Utah Hospitality Association filed a federal lawsuit challenging the new law on antitrust grounds. An amended complaint (full text) was filed on Oct. 27 in Utah Hospitality Assoc. v. Herbert, (D UT), now also seeking:

a declaration that the legislators of the State of Utah shall not consult with, or consider the opinions of, the Church of Jesus Christ of Latter Day Saints when making alcohol policies during future legislative sessions [, and] ... a declaration that the legislators consultation with the Church of Jesus Christ of Latter Day Saints when making alcohol policies during the 2011 legislative session was unconstitutional.

Recent Prisoner Free Exercise Cases

In Olivier v. Scribner, 2011 U.S. Dist. LEXIS 125755 (SD CA, Oct. 31, 2011), a California federal district court dismissed an inmate's complaint that he was not provided a kosher diet. Plaintiff failed to allege sufficient facts to support a claim under RLUIPA or the 1st Amendment.

In Funtanilla v. Williams, 2011 U.S. Dist. LEXIS 126238 (ED CA, Oct. 31, 2011), a California federal magistrate judge allowed a Seventh Day Adventist, incarcerated at a substance abuse and treatment facility, to proceed with his complaint that he was not permitted to post a copy of the 10 Commandments on his door. However the court dismissed, with leave to file an amended complaint, plaintiff's claims that his rights were violated when he was not furnished a pastor or access to group services or provided with food at his cell on the Sabbath.

In Saif'ullah v. Haviland, 2011 U.S. Dist. LEXIS 126249 (ED CA, Oct. 31, 2011), a California federal magistrate judge held that a Muslim inmate failed to state a habeas corpus claim in his complaint that his parole suitability hearing was held during Ramadan and in his complaints he was not given his cup when the Ramadan daily fast was over and was denied an evening meal on one occasion.

In Whitfield v. Illinois Department of Corrections, 2011 U.S. Dist. LEXIS 126475 (SD IL, Nov. 2, 2011), an Illinois federal magistrate judge, while dismissing a number of claims, allowed an inmate (whose religion was not specified in the opinion) to proceed with individual capacity damage claims based on alleged denial of religious meals, unequal allocation of funds for religious programs and services, forcing plaintiff to get a TB shot on the Sabbath, and inadequate training of personnel.

In Gregorio v. Aviles, 2011 U.S. Dist. LEXIS 127155 (D NJ, Nov. 3, 2011), a New Jersey federal district court dismissed, with leave to amend, an inmate's claim that his 1st Amendment and RLUIPA rights were violated because his portion of the prison was not allowed to attend religious services.

Mississippi Governor Supports Personhood Amendment

On Friday, Mississippi Governor Haley Barbour posted a statement on his official website indicating that he supports Initiative 26, the Personhood Amendment that will appear on the ballot in Mississippi this week. The statement reads:

A pro-abortion group has called people's homes and deceived voters into thinking I'm opposed to Initiative 26, the Personhood Amendment. As I've previously stated, I voted for the Personhood Amendment. These misleading calls were made without my knowledge, without my permission and against my wishes. I have demanded this deception be stopped, and those responsible have assured me that no more calls will be made.

The State Column reported yesterday that the robocalls to which Barbour refers used a portion of an MSNBC interview with Barbour in which he expresses concern about the ambiguity of the language of Initiative 26.  The proposed constitutional amendment provides: "As used in this Article III of the state Constitution, "The the term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning, or the functional equivalent thereof."

White House Statement Sends Greetings To Muslims On Eid and Hajj

President Obama today released a statement (full text) sending greetings for a happy Eid al-Adha to Muslims around the world observing the feast on Monday. The statement also congratulates those performing Hajj, which began today. The President said in part: "The Eid and Hajj rituals are a reminder of the shared roots of the world’s Abrahamic faiths and the powerful role that faith plays in motivating communities to serve and stand with those in need." AP reports that some 2.5 million pilgrims are taking part in the 5-day Hajj in Saudi Arabia. Meanwhile, according to today's Jakarta Globe, in Indonesia police in Banten arrested 3 officials from the Ministry of Religious Affairs for fraud. They took up to $5600 each from dozens of people who thought they were paying for arrangement to perform Hajj.

Air Force Academy Changes Backing Of Christmas Project

The Colorado Springs Gazette reported Thursday that the U.S. Air Force Academy has withdrawn its general solicitation of cadets by cadet leaders to support Operation Christmas Child. The program, sponsored by an evangelical Christian group, sends toys and toiletries to children around the world in boxes that also contain religious messages. The Academy has instead turned participation in the project over to Academy chaplains who can recruit support for religious activities. The change was made after a complaint was filed by Mikey Weinstein, head of the Military Religious Freedom Foundation. The Air Force Academy has been embroiled in numerous controversies in recent years accusing it of promoting Christianity to its cadets. (See prior related posting.)

Michigan Anti-Bullying Bill Criticized Over Religious Exemption

Michigan is one of three states without an anti-bullying law. Currently, Matt's Safe School Law, SB 45, is working its way through the state's legislature. ABC News reports that the state Senate passed the bill last Wednesday, but added a controversial exemption that provides the bill "does not prohibit a statement of a sincerely held belief or moral conviction." Columnist Dan Savage strongly criticized the exemption, saying:

It really is a God-hates-fags-special-rights-for-Christians-to-abuse-LBGT-kids-in-the-school law. It's a law that specifically empowers students, teachers, administrators [and] principals to bully LGBT kids if they can point to a moral justification."

Bill sponsor Rick Jones says this language was not intended to allow a child to be confronted or abused, but was merely designed to protect the child who says in class that his religion does not believe in same-sex marriage.  Jones says he is open to the language being changed, so long as students' 1st Amendment rights are protected.


UPDATE: The Michigan House of Representatives on Nov. 10 passed HB 4163, a version of the anti-bullying law that does not contain the language exempting statements motivated by religious or moral beliefs. (Huffington Post.)

Summum Sues Pleasant Grove Again-- Now In State Court

The Summum organization has been attempting for several years to obtain permission to put up a Seven Aphorism's monument in a park in Pleasant Grove City, Utah. The park already contained a number of other monuments, including the Ten Commandments.  The city's refusal has been upheld against federal constitutional challenges by the U.S. Supreme Court (see prior posting) as well as subsequently on remand by the Utah federal district court. (See prior posting.) However the federal district court declined to exercise supplemental jurisdiction to hear Summum's claim that the city's refusal violates Utah's state constitution. The Provo (UT) Daily Herald today reports that now Summum has filed another lawsuit in state court raising the state constitutional claims. It alleges that the state establishment clause (Art. I, Sec. 4) is broader than the federal establishment clause.

Nurses Sue NJ Hospital Claiming Forced Participation In Abortion Procedures

A lawsuit was filed last week by a group of nurses against the University of Medicine and Dentistry of New Jersey claiming that the University has demanded that the nurses assist in abortions in violation of their religious objections, and that they begin training to do so immediately.  The complaint (full text) in Danquah v. University of Medicine and Dentistry of New Jersey, (D NJ, filed 10/31/2011), alleges that these demands violate federal and state statutes that protect the conscience rights of medical personnel, and also violate the 14th Amendment. AP reported yesterday that the University has assured the court that it will not require nurses to participate in the training until after a scheduled Nov. 18 court hearing.

Mormon Church Sues Texas City To Challenge Denial of Zoning Permit

The Mormon Church last week filed a federal lawsuit against the city of Mission, Texas, challenging its refusal to grant a conditional use permit for a new church building that was needed to alleviate the inadequate space currently available for local church members to worship. The complaint (full text) in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. City of Mission, (SD TX, filed 10/31/2011), alleges that the city arbitrarily imposed a super-majority City Council voting requirement for approval of the permit, and that  one member of City Council should have abstained from voting because of a conflict of interest. The suit claims violations of RLUIPA, the Texas Religious Freedom Restoration Act, and free exercise and due process provisions of the Texas and U.S. Constitutions. Yesterday's Rio Grande Valley Monitor reported on the lawsuit.

Preliminary Injunction Permits Student To Distribute Religious Flyers

In K.A. v. Pocono Mountain School District, (MD PA, Oct. 20, 2011), a Pennsylvania federal district court issued a preliminary injunction permitting an elementary school student to hand out non-school related religious flyers.  The suit was filed after school officials barred the student from handing out invitations to a Christmas party at her church.  The court said that where, as here, student speech is involved, analysis should focus on the "disruption" test developed in the Tinker case, and not an analysis of whether a school is a nonpublic forum. The North County Gazette reports on the opinion. (See prior related posting.)

New Poll Shows Small Increase In U.S. Anti-Semitic Attitudes

The Anti-Defamation League released a new national poll yesterday finding a slight increase in anti-Semitic attitudes of Americans over the past two years. The survey found that 15% of Americans hold deeply anti-Semitic views, up from 12% in 2009. The survey demonstrated that old attitudes and stereotypes are still prevalent in significant groups of the population.  14% agreed with the statement that Jews have too much power in the United States. 31% agreed with the statement that the Jews were responsible for the death of Christ.

Canadian Court Rules In Sikh Temple Factional Dispute

A Canadian trial court in Windsor, Ontario has issued a ruling in a factional dispute at the Sikh Cultural Society of Metropolitan Windsor.  As reported by the Windsor Star on Wednesday, the court determined which members of the Sikh temple are eligible to vote at an upcoming election. The dispute arose when the temple's former leader, Dr. Sukhdev Singh Kooner, refused to hand over leadership to a newly elected executive committee.  On several occasions, violence has erupted between the factions.  The court this week also ordered Kooner and his supporters to stay away from the temple, except for Sunday worship services, for the next three months while elections are being held.

Britain To Permit Civil Partnership Ceremonies On Religious Premises

On Wednesday, Britain's Equalities Office published a summary of the responses to its consultation on regulatory changes that would permit same-sex civil partnership ceremonies to take place on the premises of religious institutions in England and Wales. The report includes a draft of The Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011 to implement the changes. (Full text of report.) The report says:

Making this change will allow those religious organisations that wish to do so to host civil partnership registrations on their religious premises. This voluntary provision is a positive step forward for both LGB rights and religious freedom.

The decision by any particular faith group on whether they wish their premises to be designated for civil partnership ceremonies is entirely voluntary.  The proposed regulations will leave it up to local authorities to decide whether they will as well designate clergy who apply to become civil partnership registrars. The draft Regulations will be laid before Parliament so they can come into force by the end of 2011.  The government also promised to publish a consultation document in March 2012 on equal civil marriage. Anglican Journal on Wednesday reported on developments.

Prosecutor Settles Religious Discrimination Law Suit

The Youngstown Vindicator reported Tuesday that a settlement has been reached in Ally v. City of Youngstown, a federal law suit by a Muslim assistant prosecutor in the Youngstown, Ohio Law Department alleging religious discrimination and failure to accommodate his need to attend Friday mosque services. (See prior posting.) In the settlement, plaintiff Bassil Ally will receive an immediate payment of $110,000 and will also receive a $4000 per year raise in his salary. Ally is now permitted to adjust his lunch schedule to attend Friday mosque services.

7th Circuit Hears Arguments In Bald Knob Cross Case

Yesterday the U.S. 7th Circuit Court of Appeals heard oral arguments in Sherman v. State of Illinois. An audio recording of the full oral arguments is available online. In the case, an Illinois federal district court dismissed a suit by activist Robert Sherman that challenged on Establishment Clause grounds a $20,000 state renovation grant for Bald Knob Cross. The district court dismissed the complaint on mootness and standing grounds. (See prior posting.) The Chicago Tribune reported on yesterday's oral arguments which focused in part on whether legislative intent that certain appropriated funds be used for Bald Knob creates a specific legislative appropriation which a taxpayer can have standing to challenge.

Turkish Court Upholds Alevis' Right To Create Houses of Worship

Today's Zaman on Wednesday reported on a trial court decision in Turkey that vindicates the right of Alevis to maintain their own houses of worship (cemevi). In 2004, Turkey's Religious Affairs Directorate took the position that "it is not possible to consider cemevis and other [such] places as places of worship because Alevism, which is a sub-group of Islam, cannot have a place of worship other than mosques or mescit that are common places of worship within Islam." Relying on this, the Interior Ministry asked the Çankaya Cemevi Building Association to remove references to cemevis as places of worship from its bylaws. The Association refused and the Ankara Prosecutor's Office moved to shut down the Association. The Ankara 16th Court of First Instance rejected the government's petition, writing:

Alevi cemevis or cem houses have been socially known and accepted as places of worship for centuries. The provision that cemevis are places of worship, which was included in the association’s bylaws, is not in conflict with Article 2 of the Turkish Constitution and there is not a law that prohibits this in the Turkish Constitution.

French Satirical Paper Fire Bombed Over Treatment of Islamic Law

The Los Angeles Times reports that in France yesterday, the Paris headquarters of the satirical newspaper Charlie Hebdo was fire bombed as a special edition of the French paper satirizing Islamic law in Libya and Tunisia was about to hit the newstands. According to the Daily Beast, which carries a photo of the cover of the special issue, Charlie Hebdo's website was also hacked. Muslim groups in France condemned the fire bombing, but also expressed disapproval of the depictions in the satirical issue.

Clergy Sexual Assault Provision Upheld Against Constitutional Challenge

In Smith v. Thaler, 2011 U.S. Dist. LEXIS 125869 (ND TX, Sept. 7, 2011), a Texas federal magistrate judge rejected overbreadth, vagueness and Establishment Clause challenges to a provision (TX Penal Code Sec. 22.011(b)(10)) in the Texas sexual assault statute. The challenged section provides that a sexual assault is without the consent of the other person if "the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser." A federal district judge subsequently accepted the magistrate's findings denying habeas corpus relief, and also denied a certificate of appealability. (2011 U.S. Dist. LEXIS 121962, Oct. 20, 2011).

2012 Religious Freedom Moot Court Competition Announced

George Washington University Law School has announced that it will host the 6th Annual National Religious Freedom Moot Court Competition on Feb. 11-12.  The competition is open to teams from law schools around the country. According to GW Law Professor Ira Lupu, this year's problem involves the interpretation and constitutionality of the religious performance exception in the Copyright Act of 1976 (17 USC Sec. 110(3).) Registration deadline for teams is Nov. 7.

Establishment Clause Challenge To Women's Studies Program Dismissed On Collateral Estoppel Grounds

In Hollander v. Members of the Board of Regents of the University of the State of New York, 2011 U.S. Dist. LEXIS 125593 (SD NY, Oct. 31, 2011), a New York federal district court adopted a magistrate's recommendations and dismissed on collateral estoppel grounds an Establishment Clause lawsuit by an alumnus of Columbia University. Plaintiff challenged provision of public funds to Columbia, arguing that the University's Women's Studies program unconstitutionally promotes a religion of feminism. In previous litigation, the same claim had been dismissed on standing grounds. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 126375, July 1, 2011.

IRS Changes Preserve Social Security Conscience Exemption For LLCs

Yesterday the Internal Revenue Service published T.D. 9554 in the Federal Register. As explained by the Journal of Accountancy, the release amends federal tax regulations under Sec. 3127 of the Internal Revenue Code. That section provides an exemption from Social Security taxes where both the employer and employee are members of a religious sect that opposes participation in Social Security. However, changes in regulations in 2009 created a problem where the employer was not an individual, but instead a so-called "disregarded entity"-- primarily a limited liability company (LLC) wholly owned by one individual. The 2009 changes treated the LLC as the employer-- and the LLC as an artificial business entity, of course, has no religious beliefs. The changes made yesterday assure that the exemption will continue to be available where the sole owner of the LLC is an individual whose religious faith opposes participation in Social Security.

House Reaffirms "In God We Trust" As National Motto

Yesterday, by a vote of 396- 9 (with 2 members voting "present"), the U.S. House of Representatives passed H Con Res 13, reaffirming "In God We Trust" as the national motto and encouraging its display in public buildings. Christian Post outlines the background events leading to the resolution. Americans United criticizes the House for spending time on the resolution.

House Hearing Today On Health Law and Conscience Rights

The Health Subcommittee of the House Energy and Commerce Committee will hold a hearing today on "Do New Health Law Mandates Threaten Conscience Rights and Access to Care?" The advance written testimony of the 5 witnesses is available online from the Committee's website. Testfying will be representatives of the Alliance of Catholic Health Care; Christian Medical Association; Archdiocese of Washington, D.C.; Catholics for Choice; and Washington Hospital Center. Life News reports on the scheduled hearing.

Catholic Group May Sue Over Loss of Grant For Serving Trafficking Victims

The Washington Post reported Monday that the U.S. Conference of Catholic Bishops may sue the Department of Health and Human Services over the its refusal to renew a grant to the USCCB for it to provide services for victims of human trafficking. Instead the grant money will be shared by 3 other non-profit groups.  Apparently career staff at HHS's Office of Migration and Refugee Services recommended that the grant which USCCB has held since 2006 be awarded to it again, on the basis of scores assigned by an independent review board. However senior political appointees reportedly overruled them because USCCB will not refer victims of trafficking for contraceptive or abortion services.  The Catholic group did allow subcontractors to refer women for these services, but would not reimburse the subcontractors with federal grant funds. The ACLU sued over USCCB's practices in 2009. USCCB Media Blog earlier this month accused HHS of having an "ABC Rule", i.e. "Anybody But Catholics."

Court Upholds School's Ban of Anti-Islam T-Shirts

In a decision that has just become available, Sapp v. School Board of Alachua County, Florida, (ND FL, Sept. 30, 2011), a Florida federal district court upheld against free expression challenges a school's dress codes that were applied to send students home for wearing T-shirts carrying the slogan "Islam is of the Devil."  The children who wore the T-shirts came from two families that were members of the Dove World Outreach Center. The Center had gained notoriety for promoting a "Burn a Quran Day." (See prior posting.)  At issue in the new decision were two separate versions of a dress code, in effect in successive school years. (See prior related posting.)  [Thanks to Volokh Conspiracy for the lead.]

Parents Get 75 Months In Faith Healing Death of Infant

In Calckamas County, Oregon yesterday, a trial court judge sentenced Dale and Shannon Hickman to 75 months in prison in the death of their infant son, David, who was born prematurely and lived less than 9 hours.  The couple also received 3 years' probation. As reported by the Oregonian and Courthouse News Service yesterday, the Hickmans' who are members of the Followers of Christ Church, failed to seek medical assistance for their infant and instead merely prayed for him and anointed him with olive oil in compliance with their church's teachings.  The Hickmans are the fourth Followers of Christ couple to stand trial in the last 3 years for failing to seek medical care for their children. The sentence was the minimum mandatory sentence under the state's sentencing guidelines. The judge refused to invoke a now-repealed religious exception that could have allowed him to impose less than the mandatory minimum imprisonment, saying the case did not qualify for the  exemption. The Hickman's attorney had sought merely probation, saying that the couple had already taken their two remaining children to a pediatrician, and would comply with court orders regarding medical care for them.

School Attorney Says Weekly Flag Pole Prayer Violates Establishment Clause

According to yesterday's Jacksonville Times-Union, in Clay County, Florida, the attorney for the county school board last week sent the board a Legal Memorandum (full text) concluding that weekly "Prayer Around the Flag Pole" activities involve an endorsement of religion that violates the Establishment Clause. The prayers are led and organized by a local Baptist minister and take place at 8:15 each Monday morning-- nearly an hour after teachers' work time has begun. Teachers, staff and students participate, and the school has promoted the ceremonies in a newsletter to staff and administrators. The attorney's memo says that the minister and others could use school grounds for prayer, so long as they leave before the time teachers report for work.

Cert. Denied In Utah Highway Patrol Memorial Cross Cases, Over Thomas Dissent

Today the U.S. Supreme Court denied certiorari in Utah Highway Patrol Association v. American Atheists, Inc,. (Docket No. 10-1276), and a companion case Davenport v. American Atheists, Inc., (Docket No. 10-1267) (cert. denied 10/31/2011).  Justice Thomas wrote a 19-page dissent to the denial of cert. (Full text of order and Thomas, J's dissent at pg. 38 of Order List). In the case, a 3-judge panel of the 10th Circuit held that the Utah violated the Establishment Clause when it permitted the Utah Highway Patrol Association to put up crosses on public land as memorials to Highway Patrol members who were killed in the line of duty. (See prior posting.)  The full 10th Circuit denied en banc review by a 5-4 vote. (See prior posting.) In his dissent to the denial of cert., Justice Thomas wrote:

Today the Court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles..... Because our jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess, I would grant certiorari.....

Even if the Court does not share my view that the Establishment Clause restrains only the Federal Government, and that, even if incorporated, the Clause only prohibits “‘actual legal coercion,’” ..., the Court should be deeply troubled by what its Establishment Clause jurisprudence has wrought.

Israeli Court Dismisses Indictment Against Priest In Encounter With Yeshiva Student

Today's Jerusalem Post reports that an Israeli Magistrate's Court last week dismissed an indictment against a Greek Orthodox priest who punched a Jewish yeshiva student in the face after the student spat on the ground toward the priest as he passed. The incident took place in Jerusalem's Armenian Quarter. The Jerusalem Magistrate's Court invoked a provision calling for dismissal of an indictment if it "contravenes the essence of the principles of justice and fairness."  Judge Dov Pollock in his ruling said that the dismissal came after evidence that for years police have not acted to stop daily incidents of members of the ultra-Orthodox community spitting at members of the Christian clergy. The spitting is a criminal offense, and the court said it is intolerable that a Christian should be demeaned because of his faith.

Recent Articles of Interest

From SSRN:

• Avishalom Westreich, The Wife's Right to Divorce in Jewish Law: History, Dogmatics and Hermeneutics, (Journal of Jewish Studies, Vol. 62, pp. 340-63, 2011).
• Habib Siddiqui, Muslim Identity and Demography in the Arakan State of Burma, (October 26, 2011).
• Nora El-Bialy and Moamen Gouda, Enforcing IPR Through Informal Institutions: The Possible Role of Religion in Fighting Software Piracy, (May 9, 2011).
• Grainne De Burca, The Trajectories of European and American Antidiscrimination Law, (American Journal of Comparative Law, Forthcoming).
• Brian H. O'Beirne, The Explanatory Gap in John Finnis' Theory of Natural Law, (Trinity College Law Review, Vol. 14, 2010).

Monument To Jewish Chaplains Dedicated At Arlington National Cemetery

The Washington Post reports on last week's dedication at Arlington National Cemetery of a monument to 14 Jewish military chaplains who died while serving in the U.S. military. The monument was placed on Chaplains' Hill where monuments for Catholic and Protestant chaplains already stand. The cost of the new monument was funded privately. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

Servicemembers Sue To Challenge DOMA and Obtain Equal Spousal Benefits

The Servicemembers Legal Defense Network announced last week that it had filed a federal lawsuit on behalf of a number of plaintiffs seeking the same benefits for same-sex spouses of current and former service members as is provided to opposite-sex spouses.  The complaint (full text) in McLaughlin v. United States, (D MA, filed 10/27/2011), asks the court to rule that the Defense of Marriage Act is unconstitutional as applied to military spousal benefits, and that the definition of "spouse" in federal statutes relating to military benefits is likewise unconstitutional. The complaint invokes the equal protection clause,the 10th Amendment's  principles of federalism, the fundamental right to marry, and the bill of attainder clause. Thursday's Christian Post reported on the case. [Thanks to Alliance Alert for the lead.]

Recent Prisoner Free Exercise Cases-- Summaries Are Back

Note to readers: Last week I experimented with a new format for my weekly review of prisoner free exercise cases-- a format that did not include a fact summary for the cases.  In response I received many more e-mails than I expected from readers who make significant use of the summaries. So I am re-instituting the summaries when the number of recent prisoner cases permit me to do so with a reasonable expenditure of time. Thanks to all who communicated with me.

In Ryidu-x v. Wolfe, 2011 U.S. Dist. LEXIS 123543 (D MD, Oct. 25, 2011), a Maryland federal district court permitted an inmate to move ahead with claims that he was improperly denied commissary, purchasing, and mail privileges, and access to records because of  his use of his legally recognized changed Islamic name.

In Hughes v. El Dorado Correctional Facility, 2011 U.S. Dist. LEXIS 124014 (D KS, Oct. 26, 2011), a Kansas federal district court concluded that an inmate's religious exercise was not substantially burdened when, on a single occasion, a corrections officer interrupted his praying to deliver his food tray.

In Lee v. Oktibbeha County Sheriff's Department, 2011 U.S. Dist. LEXIS 123705 (ND MS, Oct. 25, 2011), a Mississippi federal district court held that no free exercise violation was shown in a single instance in which a prison guard interfered with an inmate's ability to save food from one of his meals to eat in the evening after his fast ended.

In Birkes v. Mills, 2011 U.S. Dist. LEXIS 123742 (D OR, Oct. 25, 2011), an Oregon federal district court adopted a magistrate's recommendations (2011 U.S.Dist. LEXIS 123949, Sept. 28, 2011) and dismissed an inmate's complaint that he was not permitted to receive a copy of "The White Man's Bible" that he had ordered through the mail. Among other things, the court found that plaintiff's  White supremacist "Creativity" beliefs do not qualify as a religion. Alternatively it found that his rights were not violated even if it is a religion.

In Warner v. Patterson, 2011 U.S. Dist. LEXIS 124367 (D UT, Oct. 27, 2011), an Odinist (or Asatru) inmate alleged that prison authorities failed to accommodate his religious practices in a number of ways.  The court dismissed all plaintiff's claims except for his claim that denial of fast-boxes was motivated by purposeful discrimination against the Asatru religion.

In Trimble v. Allen, 2011 U.S. Dist. LEXIS 124447 (MD AL, Oct. 26, 2011), an Alabama federal district court denied a preliminary injunction to plaintiff who was seeking to use tobacco in his religious ceremonies in prison.

In Versatile v. Johnson, 2011 U.S. Dist. LEXIS 124541 (ED VA, Oct. 26, 2011), a Virginia federal district court rejected an inmate's claim under RLUIPA that he was impeded in exercising his Nation of Gods and Earths (NGE) religion when prison officials banned NGE texts. It also rejected his complaints regarding processing of his request to have NGE recognized as a religion. Among other things, the court found that NGE is not a religion for purposes of RLUIPA.  UPDATE: The magistrate's recommendations in the case are at 2011 U.S. Dist. LEXIS 126336, June 22, 2011.

White House Responds To Popular Petitions From Its "We the People" Website

As previously reported, a number of the petitions posted on the "We the People" section of the White House website relate to issues of religion and government. The White House promised to respond to any petition that gained 5000 signatures in 30 days. Now responses have been posted to several petitions. Responding to the call to eliminate "under God" from the Pledge of Allegiance and "In God We Trust" from U.S. currency, the White House Director of faith-based partnerships, Joshua DuBois, said:

A sense of proportion should also guide those who police the boundaries between church and state. Not every mention of God in public is a breach to the wall of separation - context matters.

That's why President Obama supports the use of the words "under God' in our Pledge of Allegiance and "In God we Trust' on our currency. These phrases represent the important role religion plays in American public life, while we continue to recognize and protect the rights of secular Americans.

In another posting, the White House refused to comment on a petition calling for "an investigation into allegations of prosecutorial and judicial misconduct in the case of Sholom Rubashkin," the convicted Orthodox Jewish former vice president of the kosher meat processing firm, Agriprocesors, in Postville, Iowa.  The White House said that:

The Department [of Justice] ... has mechanisms in place to investigate allegations of prosecutorial misconduct, including through its Office of Professional Responsibility. With respect to judicial ethics matters, the Judicial Conduct and Disability Act of 1980 vests primary responsibility for investigating and adjudicating claims of judicial misconduct with the Judicial Branch.

[Thanks to Scott Mange for the lead.] 

State Statutory Finding of Reliance on God Survives Constitutional Attack

In Kentucky Office of Homeland Security v. Christerson, (KY App., Oct. 28, 2011), a Kentucky state appeals court, in a 2-1 decision, rejected Establishment Clause and state constitutional challenges to legislative findings enacted as part of Kentucky's 2002 Antiterrorism Act. The findings (Sec. 39A.285) recited that "the safety and security of the Commonwealth cannot be achieved apart from reliance on Almighty God as set forth in public speeches and proclamations of American Presidents...." A 2006 law (Sec. 39G.010) called upon the state Department of Homeland Security to include in agency training and educational materials the language regarding reliance on God.  The majority held:

The Kentucky legislature has not attempted to compel belief or participation in any form of religious exercise, nor does it seek to prefer one belief over another. A simple reference to a generic “God” acknowledges religion in a general way....

The legislation ... does not seek to advance religion, nor does it have the effect of advancing religion, but instead seeks to recognize the historical reliance on God for protection.

Judge Shake dissenting argued that the challenged statutes

go beyond merely acknowledging the historical role of religion and instead require dependence upon Almighty God to secure the Commonwealth’s safety.

Yesterday's Louisville Courier Journal reports on the decision. (See prior related posting.)

Commonwealth Leaders Approve Ending Ban On Monarch Marrying A Catholic

BBC reports today that at the Commonwealth Heads of Government Meeting in Perth, Australia, the leaders of the 16 British Commonwealth countries have agreed to amending Britain's 1701 Act of Settlement to eliminate the ban on British monarch being married to a Roman Catholic. The original provision was put in place to settle the succession to the throne following the Glorious Revolution of 1688. (Background.) Explaining the change, Prime Minister David Cameron said:

Let me be clear, the monarch must be in communion with the Church of England because he or she is the head of that Church. But it is simply wrong they should be denied the chance to marry a Catholic if they wish to do so. After all, they are already quite free to marry someone of any other faith.

Some expressed disappointment that Catholics will still not be able to become king or queen.  The Commonwealth summit also approved changes giving daughters equal rights with sons to ascend the throne. Under current law, a daughter becomes queen only where there are no sons. Parliaments in Britain and the other Commonwealth nations will need to approve legislative changes before the reforms take effect.

Dismissed Teacher Loses Claims Against Catholic School

Braun v. St. Pius X Parish, 2011 U.S. Dist. LEXIS 123750 (ND OK, Oct. 25, 2011), is a suit by a former 5th grade teacher at a Catholic elementary school who claimed religious and age discrimination in the non-renewal of her contract. Insofar as teacher Martha Braun claimed she was dismissed because she was an Episcopalian, the court concluded that the school is protected by the exemption in Title VII of the 1964 Civil Rights Act (42 USCS § 2000e-1) that permits religious educational institutions to hire and fire on the basis of religion. In connection with the age discrimination claim, the court concluded that the ministerial exception does not protect defendant because plaintiff could not be considered a ministerial employee: "Braun did not teach religion or lead the students in prayer, and she is not Catholic." However, the court concluded that Braun's contract was not renewed because of legitimate complaints from parents about her performance, and that these were not a pretext for age discrimination.

Court Rejects Establishment Clause Challenge To Social Security Act

In Hamner v. Astrue, 2011 U.S. Dist. LEXIS 123698 (SD TX, Oct. 26, 2011), a Texas federal district court  rejected plaintiff's claim that the Social Security Act violates the Establishment Clause by coercing him to participate in Christian charity or by preventing him from participating in Christian charity.

Podcast of Law and Religion Symposium Available Online

Earlier this month, the University of Alabama School of Law hosted a symposium titled Matters of Faith: Religious Experience and Legal Response. Podcasts of the entire symposium proceedings are now available online.

Cert. Petition Filed In County Commission Prayer Case

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday seeking review in Forsyth County, North Carolina v. Joyner, (filed 11/27/2011). In the case, the 4th Circuit in a 2-1 decision held that the prayer policy of a county commission violated the Establishment Clause even though the policy was neutral on its face.  As implemented, nearly 80% of the prayers delivered mentioned Jesus, and none mentioned any other deity. (See prior posting.) The Winston-Salem Journal reports on the filing.

Mayor Caves On Water Tower Cross In Unusual Move

The mayor of Whiteville, Tennessee has found an unusual way to respond to a complaint from the Freedom from Religion Foundation about a cross that has been displayed for the last 8 years atop the town's water tower. (See prior posting.) According to WREG-TV, Mayor James Bellar has merely removed one arm of the cross, leaving as a reminder of the issue the remaining portion of the cross.  In a letter to the Nashville lawyer representing those complaining about the cross, the mayor wrote:

This brings to close a sad chapter in the history of Whiteville that can best be described as terroristic, cowardly and shameful! The fear and terror caused our older people here is shameful. So shame on your client and your firm!

FFRF has called off plans to sue the town.

Fired Muslim Employee Sues Over Right To Accommodate Prayer Time

The Chicago Tribune reported yesterday that Nathan Henderson, a Muslim former employee of the American Bottling Company, has filed a religious discrimination lawsuit against the company.  Henderson was fired after he sought permission to schedule his lunch break at a time that allowed him to attend Friday Jumma prayers.

California Settles Lawsuit Filed By Sikh Prison Guard Applicant

The California Department of Rehabilitation and Corrections has settled a religious discrimination lawsuit brought by a Sikh man whose application to become a prison guard was rejected because he refused to shave his beard.  AP reports that under the settlement, plaintiff Trilochan Obeori will receive $295,000 in damages and will be given a $61,000 per year job as a manager in the corrections department's Regulation and Policy Management branch. However the state is not changing its policy that requires most corrections employees to be clean shaven so they can be fitted with gas masks.

Moderate Islamic Party Wins Tunisian Election

Election officials in Tunisia yesterday confirmed that the moderate Islamist Ennahda party won this week's Parliamentary elections.  According to Reuters, Ennahda captured 90 seats in the 217-seat assembly which will draft a new constitution.  The next largest party-- the secularist Congress for the Republic-- obtained only 30 seats. Ennahada attempted to assure secularists and investors by saying that it would not impose Islamic banking, nor would it stp tourists from wearing bikinis on Tunisian beaches.

Cert. Filed In Challenge To Political Activity Constraints On Non-Profits

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Catholic Answers, Inc. v. United States, (filed 10/21/2011). In the case, the 9th Circuit (full text of opinion) dismissed as moot a Catholic organization's challenge to the constitutionality of Section 4955 of the Internal Revenue Code. That section imposes an excise tax on political expenditures made by Section 501(c)(3) non-profit organizations.  At issue were expenditures made by Catholic Answers on a 2004 E-letter critical of the views of Sen. John Kerry, the 2004 Democratic nominee for President of the United States. The E-letter also criticized Kerry's taking of communion at an African Methodist Episcopal church. After excise taxes were imposed, Catholic Answers filed a complaint seeking a tax refund. The IRS then abated and returned the excise taxes. Catholic Online reviews the background of the case in an opinion piece.

President Sends Best Wishes To Those Celebrating Diwali

President Obama yesterday issued a statement (full text) sending holiday greetings to Hindus, Jains, Sikhs and Buddhists who are celebrating the holiday of Diwali-- the festival of lights that "symbolizes the victory of light over darkness and knowledge over ignorance." Obama emphasized that Diwali is a time of celebration with dancing and food, but also a time for contemplation and prayer to remind us of our obligations to the less fortunate.

DC Human Rights Office Investigating Catholic U's Treatment of Muslim Students

In a press release last week, George Washington University law professor John Banzhaf disclosed that the District of Columbia Office of Human Rights has given Catholic University until today to respond to charges that it discriminates against Muslim students.  A complaint filed with the Office contends that Catholic University has not permitted Muslim students to form their own student organization, and has not provided designated space for Muslim students to use for their daily prayers. [Thanks to Ken Braithwaite for the lead.]

Forest Service Will Reconsider Permit For Jesus Statue

The Flathead Beacon reports on the Oct. 21 decision by the U.S. Forest Service to withdraw a decision handed down in August, and instead seek public comment, on reissuing a special use permit to the Knights of Columbus for a statue of Jesus that has since 1953 been located on a 25-by-25-foot piece of land in the Flathead National Forest. Protests after Flathead National Forest Supervisor Chip Weber declared the statue, located near the top of Whitefish Mountain Resort's Chair 2, an inappropriate use of public land led to the reconsideration.

House Committee Holds Hearings On U.S. Religious Liberty

The House Judiciary Committee's Subcommittee on the Constitution yesterday held hearings on "The State of Religious Liberty in the United States."  The prepared statements of witnesses are available online. The Committee heard from Bridgeport Catholic Bishop William Lori representing the U.S. Conference of Catholic Bishops; Colby M. May of the American Center for Law and Justice: and Rev. Barry W. Lynn, Executive Director of Americans United for Separation of Church and State. In addition a written statement was submitted by the ACLU. ABP reports on the hearing.

Free Exercise Challenge To Local Option Law Dismissed Under 11th Amendment

In Ethereal Enigmatic Euphoric Movement Towards Civilized Hedonism, Ltd. v. State of Idaho, 2011 U.S. Dist. LEXIS 123041 (D ID, Oct. 24, 2011), an Idaho federal district court dismissed on 11th Amendment immunity grounds a suit claiming that a city's use of a state local option law to ban the sale of alcoholic beverages violates plaintiff's free exercise rights, among others.  The complaint alleged that:

Plaintiff is an organization comprised of individuals who believe that the "consumption of distilled spirits is both [a] moral obligation and sacred right." ... It further alleges that, using Idaho's local-option law, the City of Preston enacted a prohibition on the sale of liquor by the drink, and that this prohibition violates the rights of Plaintiff's members to freely exercise their religion and discriminates against them because of their religious beliefs.... Apparently, Plaintiff holds its services on the premises of the Owl Club, a local beer and wine saloon operating in Preston, which does not sell distilled spirits pursuant to the city's prohibition.

Suit Challenges Ban On Distribution of Religious Literature In Schools

Alliance Defense Fund announced Monday that it had filed a federal lawsuit on behalf of "Kids for Christ" against the Owasso, Oklahoma Public Schools challenging school policy that bars religious groups from distributing flyers in the schools, as well as posting signs and making announcement of their events. The school policy provides that: "No literature will be distributed that contains primarily religious, objectionable, or political overtones which may be beneficial to any particular group or business at the expense of others."  The complaint (full text) in Owasso Kids for Christ v. Owasso Public Schools, (D OK, filed 10/24/2011), alleges that the policy violates the group's free speech and free exercise rights, as well as the due process, equal protection and Establishment clauses of the constitution.

NY Town Clerk Challenged In Election Over Marriage License Arrangement

AP reported yesterday that in Ledyard, New York, town clerk Rose Marie Belforti is being challenged in November's election by write-in candidate Ed Easter because of the way that Belforti is handling the issuance of marriage licenses.  Belforti decided that her Christian beliefs precluded her from issuing marriage licenses to same-sex couples, so she appointed a deputy clerk to handle marriage licenses for all couples.  Easter says that Belforti is being paid $12,000 per year for her part-time position, and the people should not be asked to pay another person to perform Belforti's duties.  Belforti says it is about accommodating her religious beliefs.

Florida Appeals Court Affirms Use of Sharia Law To Determine Whether Arbitration Is Enforceable

UPI reported yesterday that a Florida state appeals court has affirmed without opinion a decision of a state trial court that Islamic law can be used in deciding whether to enforce an arbitration award between a mosque and certain trustees of the mosque who had been removed from office. The trial court limited use of Sharia law to the question of whether Islamic dispute resolution procedures have been followed in the arbitration.. (See prior posting.)

Church Can Replace School Building-- Planning Board Had No Basis To Refuse Permission

Yesterday's Albany Times Union reports that a state trial court judge has overruled the Albany Planning Board's refusal to allow a Mormon church to tear down a former Catholic middle school building.  The court held that the Planning Board's conclusion that the building is vital to the fabric of the neighborhood lacks a rational basis. The LDS Church wants to replace the school building with a smaller chapel that provides more parking. In basing its decision on a lack of evidence supporting the Planning Board's conclusion, the court avoided ruling on the church's claims under RLUIPA.

UPDATE: Here is the full opinion in Matter of Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Sts. v City of Albany, (NY Sup. Ct. Greene Co., Oct. 20, 2011).

In Israel, Group Complains About Ban of Single Women From Mikvehs

In Israel, community Religious Councils, under the jurisdiction of the government Religious Services Ministry, operate mikvehs (ritual baths) in various towns and cities.  YNet News reports today that the Religious Action Center (an organization of the Reform Jewish movement) has complained to the Religious Services Ministry about the policy in many communities that bars unmarried women from using the mikveh. The ban is intended to avoid giving halachic (Jewish religious law) authorization for single women to have sexual relations.  According to the Religious Action Center, the ban violates the Prohibition of Discrimination in Products, Services, and Entry into Public Places Law, as well as freedom of religion and conscience and the right to human dignity. The Religious Affairs Ministry says it is looking into the matter.

Human Rights Group Condemns Rape and Forced Conversion In Pakistan

The Asian Human Rights Commission today issued a news release condemning the growing number of instances in Pakistan in which women from minority religious groups (Hindus and Christians) are raped and forced to covert to Islam:

The forced conversion to Islam of women from religious minority groups through rape and abduction has reached an alarming stage which challenges interfaith harmony due to the total collapse of the rule of law and biased attitude of the judicial officers. It appears today that no one, from the judiciary to the police and even the government has the courage to stand up to the threats from Muslim fundamentalist groups. The situation is worse with the police who always side with the Islamic groups and treat minority groups as lowly life forms.

The dark side of the forced conversion to Islam is not restricted only to the religious Muslim groups but also involves the criminal elements who are engage in rape and abduction and then justify their heinous crimes by forcing the victims to convert to Islam. The Muslim fundamentalists are happy to offer these criminals shelter and use the excuse that they are providing a great service to their sacred cause of increasing the population of Muslims.

High School ROTC Member May Not Wear Hijab In Uniform

Fox News reported last week on the case of a 14-year old Muslim high school girl in Brentwood, Tennessee who has quit her high school's Junior ROTC program because she was not permitted to wear a headscarf (hijab) while in uniform in the Homecoming parade. The school says it must follow Army regulations which do not permit religious garb that is exposed or covers the uniform. [Thanks to God and Country blog for the lead.]

Zoning Challenge Dismissed On Younger Abstention Grounds

In Salman v. City of Phoenix, 2011 U.S. Dist. LEXIS 122387 (D AZ, Oct. 20, 2011), an Arizona federal district court dismissed on Younger v. Harris abstention grounds a challenge to the building code and zoning laws that prevented plaintiffs from using their home and a building on their property for weekly Bible study and prayer sessions with 40 to 50 family and friends.  The city claimed that religious activity within a residence is considered "Church use" and requires the appropriate permits. Pending state court proceedings charging plaintiffs with building code violations, and appeals of other building code and zoning convictions, precluded federal court jurisdiciton over plaintiff's RLUIPA, free exercise, equal protection and other claims.

Libya Assures World It Will Be Moderate Muslim Country

Attempting to calm fears raised in the West after his statement that Libya would look to Islamic law as its main source of legislation, (see prior posting), Libyan National Transitional Council leader Mustafa Abdul-Jalil said yesterday: "I would like to assure the international community that we as Libyans are moderate Muslims." AP reports that meanwhile a London-based spokesman for the National Transitional Council said that Libya would not become a theocracy. It will be a civic and democratic state. At the daily U.S. State Department press briefing yesterday (full text), Department spokesperson Victoria Nuland said:

I think we’ve seen various Islamic-based democracies wrestle with the issue of establishing rule of law within an appropriate cultural context. But the number one thing is that universal human rights, rights for women, rights for minorities, right to due process, right to transparency be fully respected.