State Department Hosts Conference On Implementing U.N. Freedom of Religion Resolution

As previously reported, in March the United Nations Human Rights Council, in a major policy shift encouraged by Western nations, unanimously adopted Resolution 16/18 on Freedom of Religion or Belief which omits any reference to the concept of "defamation of religion" and instead focuses on the individual's right to freedom of belief. On Monday, the U.S. State Department followed up on this by hosting the first implementation meeting of the Istanbul Process for Combating Intolerance and Discrimination based on Religion or Belief. (State Dept. Press Release). Speaking on the opening day of the 3-day meeting (full text of remarks), Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook said in part:

We know that some people distort various religious doctrines to justify intolerance, foment violence, or create strife that serves their narrow political purposes. We must denounce offensive speech whenever we encounter it – but our commitment to universal principles makes clear that faith must never be a crime and religion must never be used as an excuse to stifle freedom of expression.

The meeting has been strongly criticized by some, such as this American Thinker article and this op-ed by Jonathan Turley, fearing it will further the "defamation of religion" agenda of the Organization of the Islamic Conference. Secretary of State Hillary Rodham Clinton responded to this criticism in part of her remarks at the State Department implementation meeting yesterday (full text):

Now I know that some in my country and elsewhere have criticized this meeting and our work with all of you. But I want to make clear that I am proud of this work, and I am proud to be working with every one of you. And I believe that this work is an affirmation of America’s values, but equally important an affirmation of universal values. Because we nor – no country individually has a monopoly on the truth, and we will do better when we live in peace with each other, when we live with respect and humility, and listen to each other. And it is important that we recognize what we accomplished when this resolution ended 10 years of divisive debate where people were not listening to each other anymore.

Now we are. We’re talking. We have to get past the idea that we can suppress religious minorities, that we can restrict speech, that we are smart enough that we can substitute our judgment for God’s and determine who is or is not blaspheming. And by bringing countries from around the world here, we are affirming our common humanity and our common commitment to defend and promote fundamental rights.

USCIRF Releases Report On Human Rights Violations In Sudan

Yesterday the U.S. Commission on International Religious Freedom released a report (full text) on the Sudanese government's violations of international human rights law in the Southern Kordofan and Blue Nile states that border the Republic of South Sudan.  Speaking at a press conference (full text of remarks), USCIRF Chairman Leonard Leo said that even after the Comprehensive Peace Agreement that led to the creation of South Sudan, President Omar al-Bashir is continuing to target people based on religion and ethnicity.

Court Says Defendant's Marijuana Use Was Not Religiously Motivated

In State of Idaho v. White, (ID App., Dec. 14, 2011), an Idaho state appeals court rejected defendant Cary White's claim that his marijuana use is protected by the Idaho Free Exercise of Religion Protected Act.  White's extensive testimony at an initial trial before a magistrate revealed both religious and non-religious reasons for his marijuana use. The magistrate concluded that; "White’s use of marijuana is more a matter of his belief in freedom, rather than a tenet of his religion." Reviewing that finding, the Court of Appeals concluded that:

there was substantial evidence for the magistrate to determine that, while White may have testified in a manner to link his marijuana use to legitimate religious beliefs and practices, this was more of an instance where he has utilized parts of various recognized religions “to meld into a justification for his use of marijuana” and did not ... establish a link between any recognized religious beliefs he may have and his marijuana use. Therefore, we conclude there was substantial and competent evidence to support the magistrate’s findings of fact that White’s marijuana use is not substantially motivated by a religious belief....

 Today's Idaho Statesman reports on the decision.

Florida Court Says Religious Freedom Amendment Ballot Language Is Misleading

Yesterday, a Leon County, Florida trial judge ruled off the 2012 ballot, at least temporarily, Florida's Amendment 7, the Religious Freedom Amendment.  In Shapiro v. Browning, (Cir. Ct. Leon Co. FL, Dec. 13, 2011), the court held that the a portion of the ballot summary language is ambiguous and misleading. The Amendment would repeal Florida's Blaine Amendment language that bars state aid to religious institutions and instead would permit religious institutions to participate in state programs on an equal basis with others. (See prior posting.) The language that the court found objectionable was the statement in the ballot summary that the amendment provides for participation in state programs by religious groups "consistent with the United States Constitution". In fact the amendment provides that the government may not deny participation to religious institutions "except to the extent required by the First Amendment."

The court's ruling however is subject to statutory mandate given to the state Attorney General to submit corrected revised ballot language within 10 days. (FL Stat. Sec. 101.161.)  The court upheld the constitutionality of the delegation of this authority to the Attorney General.  Yesterday's Palm Beach Post reports on the decision. [Thanks to FlaglerLive for the link to the decision.]

Scottish Parliament Passes Ban on Religious Hate Crimes and On Incitements At Football Matches

Yesterday Scotland's Parliament passed the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill by a vote of 64-57, according to BBC News.  As explained yesterday by The Guardian, the new law follows a series of sectarian threats and football-related violence earlier this year.

The full text of the final version of the new law is available online. It creates two new offenses.  First it bans incitement of public disorder based on hatred of a religious or racial group or on hatred relating to sexual orientation, nationality or disability. It covers such conduct at or while traveling to or from football matches.

Secondly, the new law more broadly bans threats of serious violence, or other threatening communications by a person intending to stir up hatred on religious grounds, whether or not related to football matches. However, a section designed to protect freedom of expression provides:

For the avoidance of doubt, nothing in section 5(5) prohibits or restricts— (a) discussion or criticism of religions or the beliefs or practices of adherents of religions, (b) expressions of antipathy, dislike, ridicule, insult or abuse towards those matters, (c) proselytising, or (d) urging of adherents of religions to cease practising their religions.

[Updated]

Reporter Follows Koshering of White House Kitchen For Hanukkah Reception

The Dining section of today's New York Times features an article titled Overnight Makeover for a Kosher First Kitchen. It reports on the several-hour frenzy of making the White House kitchen kosher so that food for the President's annual Hanukkah reception could be prepared there last week. (See prior related posting.) The article describes a "Lubavitch SWAT team of three rabbis and an intern."  At one point during the process, one of the rabbis "reviews a Hebrew passage from Shulchan Aruch, the venerable code of Jewish law. He finds it on his iPad."

Gingrich Iowa Staffer Resigns Over His Remarks About Mormonism

Yesterday's Des Moines Register reports that less than a week after he was hired, Newt Gingrich's political director for his Iowa campaign was forced to resign because of remarks he made about Mormons during a focus group in which he participated a day before he was hired. Craig Bergman told a focus group last Wednesday: "A lot of the evangelicals believe God would give us four more years of Obama just for the opportunity to expose the cult of Mormon. There’s a thousand pastors ready to do that." Both Mitt Romney and Jon Huntsman are Mormons.

Saudis Execute Woman Convicted of Sorcery

On Monday, according to an AP report, Saudi Arabia executed a woman who had been convicted of practicing magic and sorcery. Chief of the religious police, Abdullah al-Mohsen, said the woman had tricked people into thinking she could treat illnesses. She charged $800 per session for her services. (See prior related posting.)

Dutch Senate Unlikely To Concur In Ban On Halal and Kosher Slaughter

Last June, the lower house of Netherlands' parliament overwhelmingly passed a bill that effectively would ban kosher and halal slaughter of animals. The bill did so by eliminating a provision in current law that exempts ritual slaughter from the requirement that animals be stunned before they are killed. (See prior posting.) While at that time it appeared that the Dutch Senate would go along with the lower house, now, according to an AP report, support of several parties, including Netherlands' two largest, seems to have disappeared.  While the Senate vote on the bill will not take place until Dec. 20, yesterday the Senate debated the bill.  Senator Nico Schrijver said the Labour party now has "many questions," and suggested that animal welfare could better be improved by aiming at conditions in large-scale industrial slaughter houses rather than at the small number of  ritual slaughterers. The VVD party which holds the largest number of seats in Parliament also now seems unlikely to support the proposal. VVD senator Sybe Schaap argued that the bill reflects "ethical absolutism".

Suit Challenges Crosses On Public Property of Tennessee Town

The Freedom From Religion Foundation announced last week that it has filed a federal lawsuit against the town of Whiteville, Tennessee and its mayor, James Bellar, challenging under the Establishment Clause several crosses put up on public property. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Town of Whiteville, Tennessee, (WD TN, filed 12/9/2011), recounts the sequence of events.  Initially FFRF complained about a cross that had been displayed on the town's water tower.  The mayor responded by merely removing one arm of the cross. (See prior posting.) At about the same time, the city installed two crosses in front of city hall and decorated them with Christmas wreaths. Also a cross was installed on a public sidewalk in front of the mayor's insurance company. Yesterday, Whiteville's mayor issued a statement (full text) criticizing the lawsuit. The mayor comments in part: "What is even more puzzling about this latest lawsuit is that this foreign company and its Nashville law firm have filed it in the federal court in Jackson, Tennessee, which abuts a public sidewalk on which sits government-owned light posts that, as we speak, are decorated by colorful banners depicting Christmas trees."

Mosque Dispute Dismissed Without Invoking Islamic Law

Last March, a Florida state circuit court judge issued a controversial order providing that Islamic law would 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. (See prior posting.) Yesterday's Tampa Bay Times reports that now the same judge has dismissed the lawsuit on different grounds.  Circuit Judge Richard Nielsen held that the court cannot intervene in an internal church governance dispute. Underlying the mosque dispute is control over $2.2 million that the mosque received when some of its property was taken by the state for a road project.

UPDATE: Here is the full text of the court's opinion as well as of the parties' motions and arguments relating to dismissal of the suit. [Thanks to Volokh Conspiracy for the documents.]

Muslim Women Must Remove Veil For Canadian Citizenship Oath

The Vancouver Sun reports that Canada's Immigration Minister Jason Kenney last week announced a new rule that requires those being naturalized as Canadian citizens to show their faces while taking the citizenship oath.  This means that Muslim women will be required to remove full face veils during the naturalization ceremony.  Kenney explained the reasons for the new rule, which is effective immediately:

Requiring that all candidates show their faces while reciting the oath allows judges, and everyone present to share in the ceremony, to ensure that all citizenship candidates are, in fact, taking the oath as required by law. This is not simply a practical measure. It is a matter of deep principle that goes to the heart of our identity and our values of openness and equality.

EEOC Sues Nursing Home For Failing To Accommodate Jehovah's Witness Employee

The EEOC announced last week that it has filed a federal lawsuit against an Ann Arbor, Michigan nursing home, Whitehall Healthcare for failing to accommodate the religious needs of a Jehovah's Witness nursing assistant. The nursing home terminated the employee because of her need to have Wednesdays and Sundays off to attend religious services. The suit seeking damages and an injunction alleges that the nursing home violated Title VII of the 1964 Civil Rights Act.

Challenge To Governor's Day of Prayer Proclamation Dismissed On Standing Grounds

In Freedom From Religion Foundation, Inc. v. Brewer, (D AZ, Dec. 12, 2011), an Arizona federal district court dismissed an Establishment Clause challenge to the Arizona governor's proclaiming a "Day of Prayer."  The court held that plaintiffs lacked standing because they were not injured by the governor's proclamation, saying:

Plaintiffs provide affidavits to establish they turned off the television and altered conversational habits to avoid the topic of religion or the day of prayer....  Plaintiffs, however, do not explain why their alleged injury is different than injuries in other Establishment Clause cases in which the plaintiffs did not have standing, such as the President’s day of prayer proclamation. Essentially, Plaintiffs seek a ruling obliquely holding that injury sufficient to confer standing exists under the Establishment Clause where government action is covered in the news or the subject of a social conversation. The Court declines to depart from Establishment Clause case law on this ground. Plaintiffs have not shown injury beyond “stigmatic injury” or feeling like an “outsider.”

The East Valley Tribune reports on the decision.

Colorado Park District Bars Menorah, But Not Christmas Tree

The Evergreen, Colorado Park and Recreation District manages Lake House, a popular community gathering place on Evergreen Lake.  Lake House property however is owned by the city and county of Denver. A large evergreen tree outside Lake House had traditionally been decorated with Christmas lights. From 2005 to 2009, a Hanukkah Menorah was displayed in back of Lake House by a Jewish group. However, according to yesterday's Denver Post, this year the Recreation District has ruled that the Menorah may not be put up, invoking a rule of the Denver Parks and Recreation Department that bars religious decorations on public property. Under Supreme Court precedents, a Menorah is considered religious, while a Christmas tree is not. [Thanks to Patrick Gillette for the lead.]

North Korea Warns South Against Christmas Tree Towers At Border

BBC News reported Sunday that Christmas tree shaped towers have become the latest point of contention between North and South Korea. A tree shaped 30 meter high steel structure illuminated by thousands of small lights had traditionally been set up by South Korea on Aegibong hill, two miles from the North Korean border. However when relations between the two Koreas began to thaw in 2003, the tradition was ended.  Tensions between North and South began to grow again last year, and last December South Korea again lit the tree amidst tight security.  This year, South Korea plans to again light the tree shaped tower and to also allow Christian organizations to light two additional towers along other parts of the border. However a North Korean state-run website warns the South of "unexpected consequences" if it goes through with the planned Dec. 23 tree lightings.  North Korea said the trees would amount to a form of psychological warfare.

White House Website Announces Holiday Theme For 2011

The White House website now includes a 2011 Holidays at the White House page featuring photos of White House holiday decorations and blog posts relating to the holiday season. The introductory paragraph reports:

Our theme for this 2011 holiday season is "Shine, Give, Share," which offers an opportunity to pay tribute to our troops, veterans, and their families throughout the White House. This year, the official tour features 37 Christmas trees, 30 are natural trees and 7 are made from paper, felt or aluminum; a gingerbread model of the White House made of 400 pounds of gingerbread, white chocolate and marzipan plus 5 different representations of First Dog Bo Obama. Volunteers from 36 states plus the District of Columbia worked for days to get everything ready.

The White House announced that last week it had sponsored a special holiday "tweetup" for 150 followers of the White House Twitter feed from around the country. The group tweeted during the tour, sharing what they saw and heard.

Texas Approves Christian Themed Specialty License Plate

According to the Austin (TX) American-Statesman, on Thursday the Texas Department of Motor Vehicles governing board, by a vote of 4-3, approved a specialty license plate displaying 3 Christian crosses on a hill and the motto "One State Under God."  A portion of the fees from the specialty plate will go to a Nacogdoches (TX) ministry to support a youth ministry program. In a press release Thursday, the Texas Freedom Network (TFN) criticized the Department's approval of the new "Calvary Hill" specialty plate. Rev. Dr. Larry Bethune, a TFN board member, said that the design trivializes the Christian faith by turning it into "slogans and symbols on the back of a bumper." [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Nathan B. Oman, How to Judge Shari'a Contracts: A Guide to Islamic Marriage Agreements in American Courts, (Utah Law Review, Vol. 2011, No. 1, p. 287, 2011).
• Douglas NeJaime, Marriage Inequality: Religious Exemptions and the Production of Sexual Orientation Discrimination, (California Law Review, Forthcoming).
• Kishor Kunal, Freedom of Religion in Secular State, (December 6, 2011).
• Munir Ahmad Mughal, English Translation of Ibn Hashsham's Siratun-Nabi (Peace Be Upon Him), (December 11, 2011).
• Steven Aiello, 'Islam and Social Justice in Iran': The Merging of Economic, Political and Religious Dogmas in the Iranian Revolution, (December 6, 2011).
• Jeffrey A. Parness, Statutory Parenthood for Same-Sex Partners, (Illinois Bar Journal, Vol. 99, p. 636, December 2011).
• Mohammed Khnifer, Goldman Sachs Claims that its $2 billion Sukuk Programme Follows a Murabaha Structure, Mohammed Khnifer Claims Otherwise – That it's Nothing More than Areverse Tawarruq,(December 6, 2011).

Court Upholds Church's Firing of Pre-School Director For Living With Boyfriend

In Henry v. Red Hill Evangelical Lutheran Church of Tustin, (CA App., Dec. 9, 2011), a California appeals court upheld a church's firing of its pre-school director for living with her boyfriend and raising their child together without being married-- living arrangements that were contrary to the religious beliefs of the church.  The court summarized its holdings as follows:

(1) Henry‟s claim of wrongful termination under the FEHA [California Fair Employment and Housing Act] is barred because the church does not qualify as an “employer” under the FEHA; (2) Henry‟s employment was terminated for religious reasons for which the church and school are exempt under title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e et seq. (Title VII)); and additionally, (3) her claim for wrongful termination in violation of public policy is barred by the ministerial exception.

Recent Prisoner Free Exercise Cases

In Mitchell v. Texas Department of Criminal Justice, 2011 U.S. Dist. LEXIS 139638 (ND TX, Dec. 3, 2011), a Texas federal magistrate judge dismissed claims by a Sunni Muslim inmate that his rights under the 1st Amendment and RLUIPA were infringed when he was disciplined for failing to keep a medical appointment at the end of Ramadan.

In Lemcool v. Pool, 2011 U.S. Dist. LEXIS 139535 (ND FL, Dec. 3, 2011), a Florida federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 139536, Nov. 1, 2011) and dismissed complaints by a Wiccan inmate that she was refused 3-ring binders for religious writings, and that Tarot cards were limited to the chapel. However it refused to dismiss for lack of exhaustion a claim that she was not provided opportunities to celebrate Sabbat and Esbats.

In LeCompte v. Ricci, 2011 U.S. Dist. LEXIS 140586 (D NJ, Dec. 7, 2011), a New Jersey federal district court rejected a inmate's 1st Amendment and RLUIPA challenges to disciplinary action taken against him for establishing a business and providing false information to government agencies to conceal that some of those involved were incarcerated. The inmate claimed the business was an Islamic charity intended to assist at-risk women.

In Isbell v. Ryan, 2011 U.S. Dist. LEXIS 140469 (D AZ, Dec. 6, 2011), an Arizona federal district court permitted an Asatru inmate seeking a lacto-vegetarian diet to proceed with 1st Amendment and RLUIPA claims against several named defendants, finding that there remains a dispute as to whether the inmate's request was based on a sincerely held religious belief. The court said that sincerity of belief does not turn on objective knowledge of a religion. Nor is the centrality of a belief to the religion relevant to the free-exercise claim.

In McMichael v. Pallito, 2011 U.S. Dist. LEXIS 138124 (D VT, Dec. 1, 2011), a Vermont federal district court adopted a magistrate's recommendations (2011 U.D. Dist. LEXIS 140907, Oct. 24, 2011) and rejected an inmate's claim that delay in furnishing him a diet consistent with his Muslim beliefs infringed his free exercise rights.

In Thomas v. Taylor, 2011 U.S. Dist. LEXIS 141625 (SD IL, Dec. 9, 2011), an Illinois federal district court dismissed a complaint by a Muslim inmate who, while furnished a vegetarian diet consistent with his beliefs, instead wanted access to the kosher diet plan.

NYT Says Strong Al Nour Showing In Egypt Stems From More Than Religious Concerns

Today's New York Times carries an interesting analysis of why Egypt's conservative Muslim Salifist Al Nour Party was so successful in the first round of Parliamentary elections:

their appeal may have as much to do with anger at the Egyptian elite as with a specific religious agenda. The Salafis are a loose coalition of sheiks, not an organized party with a coherent platform, and Salafi candidates all campaign to apply Islamic law as the Prophet Muhammad did, but they also differ considerably over what that means. Some seek within a few years to carry out punishments like cutting off the hands of thieves, while others say that step should wait for the day when they have redistributed the nation’s wealth so that no Egyptian lacks food or housing.

But alone among the major parties here, the Salafi candidates have embraced the powerful strain of populism that helped rally the public against the crony capitalism of the Mubarak era and seems at times to echo — like the phrase “silent majority” — right-wing movements in the United States and Europe.

Israeli Bus Company Fined After Driver Enforces Sex Segregation

In Israel on Wednesday, the Rishon Lezion Magistrate Court fined Egged, Israel's largest bus company, the equivalent of $1,070 (US) for requiring a woman passenger to sit in the back of the bus while the bus traveled through a Haredi (strictly Orthodox) neighborhood.  According to JTA, a driver told the passenger (an Orthodox woman who objected to sitting in the back) that only the rabbis decide whether a bus route is segregated or not. Egged issued a statement saying that the driver was not reflecting the company's views. Last January, Israel's High Court of Justice ruled that while sex-segregated buses serving strictly Orthodox communities could continue on a strictly voluntary basis, a bus operator may not request or order a woman to sit in the back of the bus. (See prior posting.)

White House Hosts Hanukkah Reception

As reported by Haaretz, the White House yesterday hosted its annual Hanukkah reception, with President Obama, Vice President Joe Biden and their wives in attendance along with some 550 guests. In his remarks (full text), the President, after noting the reception was a bit early this year, said in part:

This year, we have to recognize the miracles in our own lives.  Let’s honor the sacrifices our ancestors made so that we might be here today.  Let’s think about those who are spending this holiday far away from home -– including members of our military who guard our freedom around the world.  Let’s extend a hand to those who are in need, and allow the value of tikkun olam to guide our work this holiday season.

This is also a time to be grateful for our friendships, both with each other and between our nations.  And that includes, of course, our unshakeable support and commitment to the security of the nation of Israel.

Yahoo! News has additional photos of the reception.

9th Circuit Hears Arguments In California Proposition 8 Case

AP reports that yesterday the U.S. 9th Circuit Court of Appeals heard two sets of arguments on different aspects of Perry v. Brown, the case challenging the constitutionality of California's Proposition 8 that barred same-sex marriage in the state. One set of arguments (audio of arguments) focused on whether now-retired Judge  Vaughn Walker who presided over the district court trial should have disclosed that he was in a long-term relationship with a male partner, arguably a fact bearing on his impartiality in deciding the case. The second set of arguments (audio of arguments) dealt with whether the court should unseal video recordings of the trial made by Judge Walker.

Egyptian Military Moves To Limit Influence of Islamists On New Constitution

AP reported Wednesday that Egypt's ruling military leaders, concerned with the strong showing by Islamic parties in the first round of parliamentary elections, have decided to appoint a new council to assure that the 100-member constituent assembly appointed to draft a new constitution will be representative of all religions, professions, and political parties. In response to a question, Gen. Mukhtar Mulla agreed that this move is designed to limit the influence of Salafis who want to impose strict Islamic law in Egypt. AFP reports that the Muslim Brotherhood, objecting to the move, says the army is trying to marginalize Parliament in the writing of the new constitution.

Kazakhstan Muslim Students Plan To Sue Over Hijab Ban

Radio Free Europe reports today that in Kazakhstan, 8 female Muslim students plan to sue Saqtaghan Baishev University because it refuses to allow them to attend classes wearing hijabs (head scarves). The University says that its regulations are consistent with Kazakhstan's recently-enacted Law on Religions and Religious Organizations.  Attorneys for the students say the University's regulations violate Kazakhstan's constitution which guarantees citizens the right to freely practice their religion.

Group Seeks Input On Tax Issues Relating To Religious Non-Profits

Last January, the Evangelical Council for Financial Accountability at the request of Iowa Senator Chuck Grassley, ranking member of the U.S. Senate Finance Committee, formed an independent national commission to study accountability and policy issues affecting churches and religious organizations. (See prior posting.) Yesterday that commission, the Commission on Accountability and Policy for Religious Organizations, announced that it has added a public input page to its website.That page asks members of the public for input on 17 separate issues relating to taxation of churches and conditions imposed on religious organizations claiming non-profit tax status.

Controversy Over Nativity Scene In Texas Town

This year it is in the small town of Athens, Texas that a controversy over a nativity scene on public property has erupted.  KYTX News reported yesterday that the Keep Athens Beautiful Committee decorates downtown Athens with reindeer, Santa, carolers, a Christmas tree and a nativity scene. The Freedom from Religion Foundation has objected, but County Judge Richard Sanders says the display is legal because it includes secular as well as religious elements. FFRF alternatively wants to put up its own sign reading in part: "There are no gods, no devils, no angels, no heaven or hell."  County Commissioner Joe Hall says he will fight to keep the nativity scene, declaring: "This nation is a Christian nation regardless of what those fruit loops and fruitcakes in Washington D.C. say. Hell will freeze over before I vote to have it removed."

Tennessee School Board Agrees To Settlement In Challenge To Religious Practices

The ACLU of Tennessee announced yesterday that the Sumner County (TN) Board of Education has agreed to enter into a consent decree in a lawsuit charging that the Sumner County schools have engaged in a pattern of promoting religion. (See prior posting.) The proposed Consent Decree (full text) in ACLU of Tennessee v. Sumner County Board of Education is summarized by the ACLU as follows:

school officials can no longer promote their personal religious beliefs to students.  Religious symbols and items may not be displayed in a place publicly visible to students.  Teachers may supervise student clubs but can no longer participate in their activities and school officials cannot encourage or solicit prayer at school functions.  School events may not be held in religious venues except under certain limited conditions and the schools can no longer take field trips to religious sites.  Only family members will be permitted to visit schools at lunchtime.  Groups wishing to distribute materials to students, such as members of Gideons International, must do so in a neutral way, minimizing contact with students and no groups will be given preferential access to students.  Non-religious clubs shall not have “chaplain” positions and all course materials and choral music must have a clear pedagogical purpose.

The Tennessean, reporting on the settlement said school officials emphasized that under it students will still be able to pray at school, study the Bible during lunch breaks, organize religious clubs, wear religious jewelry and hold See You At the Pole prayer events so long as teachers do not participate in or lead the activity.

Canada's High Court Hears Arguments Over Whether Muslim Witness Can Wear Full-Face Veil

The National Post reports that yesterday the Supreme Court of Canada heard oral arguments in a case raising the issue of whether a Muslim woman who is alleging childhood sexual abuse by her cousin and her uncle should be allowed to testify wearing a full-face veil. An Ontario court ordered the woman during a preliminary hearing to remove her niqab.  The Globe and Mail captures the flavor of the argument:

There was no mistaking the impatience in Supreme Court of Canada Justice Morris Fish’s voice when he demanded the name of a single lawyer who would willingly cross-examine a witness whose face was concealed by a veil.

“Some blind lawyers that I know,” responded David Butt, counsel to the sexual assault complainant seeking to testify from behind an Islamic niqab....

It was that kind of day at the landmark hearing, where the court must determine whether religious ritual and observance can trump the right of an accused to a fair trial. Judges clashed repeatedly with lawyers who sought to rank one right ahead of the other – particularly Mr. Butt.

The judges questioned not only the fairness of allowing the defendant, N.S., to hide her facial expressions during cross-examination, but whether two diametrically opposed rights can ever be reconciled.

USCIRF Takes Formal Steps To Prepare To Close Down

As previously reported, the U.S. Commission on International Religious Freedom is now scheduled to go out of business on Dec. 16.  Under Sec. 209 of the International Religious Freedom Act, the Commission was originally scheduled to terminate on Sept. 30. However two continuing resolutions have temporarily extended its life while a House-passed 2-year re-authorization bill (HR 2867) has been awaiting passage in the Senate. However the Senate has not acted, apparently because of a "hold" placed on the bill by Senate majority whip, Sen. Richard Durbin (D-Ill.).  According to a report last month in CQ Weekly, the hold stems from a dispute over an entirely unrelated matter.  Durbin wants Congress to appropriate funds for the federal government to buy up an unused maximum-security prison in his district in Illinois and turn it into a federal facility.  Rep. Frank R. Wolf (R-VA), the sponsor of the USCIRF re-authorization bill, is currently chair of the House Appropriations Commerce-Justice-Science Subcommittee that is responsible for funding federal prisons.

Now that it appears increasingly unlikely that USCIRF's life will be extended beyond Dec. 16, the Government Services Administration has notified the Commission that it must take steps to prepare for closure of the agency.  In response USCIRF has adopted a Resolution (full text) authorizing the archiving of records and steps to close the agency in compliance with federal law if a last minute extension is not enacted.  Copies of the Resolution were sent to the President, the Secretary of State and all members of Congress.  CNS News yesterday reported on these developments. [Thanks to Pew Sitter for the lead.]

Lawyer, Client Face Sanctions For Anti-Catholic Statements In Legal Memorandum

The St. Paul (MN) Pioneer Press reports that U.S. Bankruptcy Judge Nancy Dreher yesterday issued show-cause orders to attorney Rebekah Nett and her client Naomi Isaacson threatening to impose sanctions on them for bigoted anti-Catholic statements contained in a legal memorandum they filed with the court last month. The memorandum was written by Isaacson, but signed by Nett. It called Judge Dreher, another judge and two bankruptcy trustees "dirty Catholics" and said the courts are "composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church." It accused one of the bankruptcy trustees of being "a Jesuitess" with a "track record of lies, deceit, treachery and connivery." In all, Judge Dreher cited 10 passages containing religious slurs, allegations of conspiracy and the like that were included in the memorandum. A hearing is scheduled for Jan. 4 for Nett and Isaacson to show cause why they should not be fined up to $10,000 each and be ordered to write public apologies. The court is also proposing that attorney Nett be required to attend at least 30 hours of ethics training.

UPDATE: The Catholic League for Religious and Civil Rights announced on Dec. 9 that it is filing a formal complaint against attorney Rebekah Nett with the Minnesota Office of Lawyers Professional Responsibility Board and a formal grievance against her with the Wisconsin Office of Lawyer Regulation.

UPDATE2: The St. Paul Pioneer Press reported on 12/14 that Naomi Isaacson's filings in response to the court's show cause order contain "even more religious slurs than the one prompting the judge's warning."

Fired Muslim Drivers Sue Car Rental Company For Religious Discrimination

AP reports that in Seattle, Washington yesterday, 25 Somali Muslims who previously worked as drivers for Hertz Corp. at the Seattle-Tacoma International Airport have filed a state court lawsuit charging religious discrimination. Hertz fired the drivers when they refused to clock out for their daily prayer breaks. As previously reported, apparently Hertz originally agreed they would not need to clock out, but changed that policy when a number of the drivers failed to return promptly after their prayers.

Coalition Seeks Information On Faith-Based Hiring By Federal Grantees

The Coalition Against Religious Discrimination (CARD) is a group of over 50 religious, civil rights and public policy organizations that has been encouraging the Obama administration to require all recipients of federal grants and contracts to observe a strict non-discrimination policy in hiring for positions funded with federal dollars.  However, despite statements supporting non-discrimination President Obama has not rescinded Executive Order 13279 issued in 2002 by President George W. Bush permitting religious organizations that receive federal funds to use religious criteria in their hiring. (See prior posting.) Joshua DuBois, head of he White House Office of Faith-Based and Neighborhood Partnerships has said that the question of whether a grantee may engage in faith-based hiring is being handled on a case-by-case basis. So yesterday, according to a press release from Americans United, CARD wrote identical letters (full text) to the Faith-Based Partnership Office in each of over a dozen federal departments and agencies seeking more information on this case-by-case approach.  The letters ask for details of the review process, the criteria applied and the facts and results in each case.

6 Republican Candidates Address Republican Jewish Coalition

Six Republican presidential candidates addressed the Republican Jewish Coalition in Washington, D.C. yesterday.  Candidate Ron Paul was not invited by the RJC because of his views on Israel, though Paul says those views are being characterized unfairly. (CNN report.)  Videos of the address by each of the six candidates are available from this page on C-Span's website. The candidates focused heavily on U.S. policy toward Israel and the threat to Israel and the U.S. of a nuclear Iran. Reporting on the candidate forum, the New York Times said:

One reason Republicans seek to sound serious on Israel is to appeal to evangelical Christians who make up large portions of the Republican primary voters in South Carolina and the caucusgoers in Iowa. Down the road, they also know that Jewish voters are critical to victory in general election swing states like Pennsylvania and Florida.

But just as the candidates have staked out hard positions on Israel, they have also moved to the right on other issues, a shift that Democrats say calls into question their appeal to a wide swath of Jewish voters.

New Rick Perry Ad Attacks Obama on Religion

Candidate Rick Perry released an 30-second ad today attacking what he called "Obama's war on religion." In the ad, he says:

I’m not ashamed to admit that I’m a Christian, but you don’t need to be in the pew every Sunday to know there’s something wrong in this country when gays can serve openly in the military but our kids can’t openly celebrate Christmas or pray in school.

As president, I’ll end Obama’s war on religion. And I’ll fight against liberal attacks on our religious heritage.

Faith made America strong. It can make her strong again.

The Washington Post's report on the ad carries the full text and the video of the ad. CBS News reports on criticism of the ad by the Log Cabin Republicans, a group that represents the interests of gay and lesbian Republicans.  The Perry ad was also strongly criticized by the Interfaith Alliance and and the Human Rights Campaign.

Rabbi, Former Jail Chaplain, Settles Paying $2500 Fine For Taking Gift

In a settlement with the New York City Conflicts of Interest Board on Monday, Rabbi Leib Glanz, former New York City jail chaplain, agreed to a $2500 fine.  As reported by the New York Times and JTA, the fine grew out of a much-publicized 2008 Bar Mitzvah celebration that Glanz helped inmate Tuvia Stern hold for his son in the Manhattan Detention Complex ("The Tombs") after a judge refused to grant Stern a furlough to attend his son's Bar Mitzvah outside of jail. (See prior posting.)  While Glanz cleared the Bar Mitzvah celebration with Department of Corrections officials, publicity about the event created a furor that led to Glanz's resignation and disciplinary action against several corrections officials. At the Bar Mitzvah celebration, Stern presented Glanz with a plate and a silver Kiddush cup worth $500. Glanz says he initially refused the gifts, but then took them in order to avoid offending the family after being pressed to do so by the family and other guests.  Glanz, who was once a powerful Satmar rabbi with political connections, has been charged in an unrelated case with theft and conspiracy for taking $22,000 in Section 8 housing subsidies.

Religious Marriage Without License Is Merely Voidable, and Not Terminated By Religious Divorce Alone

In Mussa v. Palmer-Mussa, (NC App., Dec. 6, 2011), a North Carolina appeals court held that the marriage of defendant Nikki Palmer-Mussa to Juma Mussa was void because at the time of the marriage Nikki was married to another man.  In 1997, Nikki married Khalil Braswell in a ceremony that complied with Islamic law, but without a marriage license from the state and without an imam officiating. Later the same year Nikki divorced Braswell in accordance with Islamic law by returning the dowry and shortly thereafter married Juma Mussa.  The court, however, concluded that while the marriage to Braswell without a license and not performed by a member of the clergy was voidable under North Carolina law as it stood at the time of the marriage, the marriage was not void.  A religious divorce alone did not suffice to terminate the voidable marriage. Judge Bryant dissented, arguing that Juma, who was seeking an annulment, failed to present direct evidence that proved the existence of a valid prior marriage. The Greensboro (NC) News-Record reports on the decision.

Secy. State Clinton Says Religious Objections Do Not Trump LGBT Human Rights

Speaking yesterday at a United Nations event in Geneva, Switzerland marking International Human Rights Day (full text of remarks), U.S. Secretary of State Hillary Rodham Clinton delivered a strong call for protection of gay, lesbian, bisexual and transgender rights. She said in part:

Now, raising this issue, I know, is sensitive for many people and that the obstacles standing in the way of protecting the human rights of LGBT people rest on deeply held personal, political, cultural, and religious beliefs..... 

The ... perhaps most challenging, issue arises when people cite religious or cultural values as a reason to violate or not to protect the human rights of LGBT citizens. This is not unlike the justification offered for violent practices towards women like honor killings, widow burning, or female genital mutilation. Some people still defend those practices as part of a cultural tradition. But violence toward women isn't cultural; it's criminal. Likewise with slavery, what was once justified as sanctioned by God is now properly reviled as an unconscionable violation of human rights.

In each of these cases, we came to learn that no practice or tradition trumps the human rights that belong to all of us. And this holds true for inflicting violence on LGBT people, criminalizing their status or behavior, expelling them from their families and communities, or tacitly or explicitly accepting their killing.

Of course, it bears noting that rarely are cultural and religious traditions and teachings actually in conflict with the protection of human rights. Indeed, our religion and our culture are sources of compassion and inspiration toward our fellow human beings.....

LGBT rights advocates called the speech historic. (Dallas Voice.) The State Department also issued a Fact Sheet outlining more broadly its accomplishments in promoting LGBT human rights.  Meanwhile at the White House yesterday, President Obama issued a Memorandum to executive departments and agencies (full text) "directing all agencies engaged abroad to ensure that U.S. diplomacy and foreign assistance promote and protect the human rights of LGBT persons."

Male Nurse Says Order Not To Treat Muslim Female Patients Was Sex Discrimination

The Dearborn Patch today follows up on a report last month by the Detroit News on a federal sex discrimination lawsuit against the city of Dearborn, Michigan filed by a male nurse who was fired from the city's health department. Nurse John Benitez Jr. was told by his female supervisor not to treat women wearing Muslim headscarves because their male family members did not want a male treating female patients. However Benitez disregarded this instruction when a doctor told him to treat a female patient. Benitez was subsequently fired. The suit, filed last month, claims his firing violated Title VII of the 1964 Civil Rights Act because it was motivated in part by his gender.

11th Circuit Rejects Suit By Mardi Gras Demonstrator Against Police

In Bethel v. City of Mobile, (11th Cir., Dec. 2, 2011), the 11th Circuit Court of Appeals upheld the dismissal of a claim by a Mardi Gras demonstrator that his arrest for disorderly conduct violated his free exercise, 4th Amendment and the equal protection rights. Orlando Bethel was standing on a sidewalk in Mobile, Alabama, along the Mardi Gras parade route with a sign reading: "GOD hates you SINners repent in JESUS name live SIN free." A woman also at the parade called police complaining that Bethel was harassing her 13-year old daughter, calling her a "whore" and a"slut." The court concluded that this gave officers probable cause to arrest Bethel, so that they had qualified immunity as to Bethel's 4th Amendment claim. It also found Bethel presented no evidence that his arrest violated his 1st or 14th Amendment rights. (See prior related posting.)

VP Biden Meets In Turkey With Ecumenical Patriarch

Vice President Joseph Biden, on a trip last week to Iraq, Turkey and Greece, met in Istanbul, Turkey on Saturday with Greek Orthodox Ecumenical Patriarch Bartholomew. (White House blog.) According to Archon News, in a private meeting with the Patriarch, Biden discussed religious freedom in Turkey, the hoped-for reopening of the Theological School on Halki (see prior posting), Turkey's accession to the European Union, and the ecological initiatives of the Ecumenical Patriarchate.

Sales Clerk Claims Store's Customer LGBT Policy Violated Her Religious Fredom

Liberty Counsel issued a press release yesterday taking aim at the department store Macy's LGBT non-discrimination policy, claiming that its enforcement infringed the religious freedom of a Macy's sales clerk.  Apparently Macy's has a policy that transgender individuals may choose to use either male or female dressing rooms to try on clothing.  As recounted by Liberty Counsel, in San Antonio (TX) sales clerk Natalie Johnson saw "a young man dressed as a woman" walk out of a women's fitting room.  Johnson told the customer, who was accompanied by five other individuals, that he could not go back in the fitting room because it was for women. The customer claimed to be a female. The group, in an argument with Johnson, claimed that Macy's is supposed to be LGBT friendly. Johnson replied that "Macy’s is also non-discriminatory toward religion, and that it would go against her religious beliefs to lie that he was a woman or compromise with homosexuality." Johnson was fired after she refused her manager's instructions to comply with the company's LGBT policy.

South Carolina School District Sued Over Promoting Religion

The ACLU announced yesterday that it has filed a federal lawsuit challenging school-sponsored religious activities in the Chesterfield County, South Carolina schools. The complaint (full text) in Anderson v. Chesterfield County School District, (D SC, filed 12/5/2011) alleges a practice by the New Heights Middle School of sponsoring school events that feature prayer, proselytizing, and inculcation of religion.  The complaint focuses particularly on a school evangelical revival assembly held last September which featured a Christian rapper ("B-SHOC"), as well as a minister who delivered a sermon and church members who prayed with students.  Apparently students were also urged to sign a pledge dedicating themselves to Christ. Students who elected not to attend the assembly were required to instead report to the in-school suspension room. The complaint also alleges that religious depictions are displayed at various places in the school. Plaintiffs seek a declaration that these practices violate the Establishment Clause and an injunction to prevent them in the future. (See prior related posting.)

Cert. Denied In New York School Ban on Using Buildings for Church Services

The Supreme Court today denied certiorari in Bronx Household of Faith v. New York City Board of Education (Docket No. 11-386, cert. denied 12/5/2011) (Order List). In the case, the 2nd Circuit, in a 2-1 decision, upheld the New York City 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). Reuters reports on the Court's refusal to review the 2nd Circuit's decision.

Christians Fear Sectarian Violence From "Arab Spring"

In an lengthy article today titled An 'Arab Winter' Chills Christians, the Wall Street Journal reports that at least 54 Iraqi Christian churches have been bombed and at least 905 Christians have been killed in sectarian violence since the U.S. invasion in 2003. Many Christians have fled. The Christian population is down to 500,000 from an estimated 800,000 to 1.4 million in 2003.  Summarizing its findings, the Journal concludes:

With the Arab Spring now bringing political turbulence to many other countries in the region, Christians throughout the Middle East are worried that what happened in Iraq may be a harbinger of misfortune to come in their own communities. While many remain supporters of the uprisings, others fear that the toppling of their autocratic rulers could uncork sectarian violence against Christians and other minority groups in their own nations.

In a related development, last week, Minority Rights Group International released a report titled Iraq Minorities: Participation in Public Life.

Indonesian Animist Tribe Wants Their Religion On ID Cards

In Indonesia, the Inner Baduy tribe which lives in the province of Banten is asking the Constitutional Court to allow them to have their traditional animist religion-- Sunda Wiwitan-- listed on their government identification cards.  According to today's Jakarta Globe, until 2010 they were able to do this, but then local officials reinterpreted the law and required them to choose to be listed as belonging to one of the six official religions--Islam, Buddhism, Hinduism, Catholicism, Protestantism or Confucianism.  The 2006 Public Administration Law provides that the space for religion can be left blank if the person does not belong to one of these six faiths.

Recent Articles of Interest

From SSRN:

• John William Tobin, Should Discrimination in Victoria's Religious Schools Be Protected? Using the Victorian Charter of Human Rights and Responsibilities Act to Achieve the Right Balance, (U of Melbourne Legal Studies Research Paper No. 564, Nov. 28, 2011).
• Avishalom Westreich, The 'Gatekeepers' of Jewish Marriage Law: Marriage Annulment as a Test Case, Journal of Law and Religion, Vol. 27, 2012.
• Munir Ahmad Mughal, International Criminal Court: An Examination from Islamic Point of View, (November 30, 2011). 

From SmartCILP and elsewhere:

• Angela C. Carmella, Symbolic Religious Expression on Public Property: Implications for the Integrity of Religious Associations, 38 Florida State University Law Review 481-535 (2011).
• Scott Ellis Ferrin, Rights, Religion, Regard, Contact: The Common School Ideal, A Nurturing, Safe and Effective Educational Environment for All Students, [Abstract], 2011 BYU Education & Law Journal 205-236.
• Ralph D. Mawdsley, Employment, Sexual Orientation, and Religious Beliefs: Do Religious Educational Institutions Have a Protected Right to Discriminate in the Selection and Discharge of Employees?, 2011 BYU Education & Law Journal 279-302.
• Mark Strasser, Parents, Religious Convictions, and Public School Curricula, 2011 BYU Education & Law Journal 547-569.
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations-- 2011 Revision, PLI Course Handbook for Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings (2011).

Army Settles Case; Allows Jewish Chaplain To Enlist and Keep Beard

Chabad.org reports that the U.S. Army has settled the lawsuit filed against it by Rabbi Menachem Stern who was not permitted to become a military chaplain because he refused for religious reasons to shave his beard. (See prior posting.) Stern claimed that the refusal to grant him an exemption from the grooming provisions violated his free exercise and equal protection rights. The Army has now relented and has approved him for a reserve commission. He will be sworn in on Friday and will head to chaplain school in January. JTA reports that the swearing-in will be streamed live by the Alef Institute.  Stern hopes to request active duty after he completes his chaplaincy training.  There is currently a shortage of Jewish chaplains in the military. Only 9 Army rabbis are on active duty, and there are only 37 Jewish chaplains in all the armed services, including the reserves.  Many Chabad rabbis would be willing to serve as chaplains if they could obtain an exemption that allows them to continue to wear a beard.  Stern's case may set a precedent for doing so.

Recent Prisoner Free Exercise Cases

In Hernandez v. United States, 2011 U.S. Dist. LEXIS 136298 (ND OH, Nov. 28, 2011), an Ohio federal district court rejected a federal inmate's complaints regarding provision of kosher meals to Jewish inmates, particularly during Passover in 2011.

In Washington v. Adams, 2011 U.S. Dist. LEXIS 136916 (ED CA, Nov. 28, 2011), a California federal magistrate judge recommended that an inmate who is a member of the Moorish Science Temple of America be permitted to move ahead with his complaint that his religion requires him to change his name to a Muslim name, but that his request to do so was denied by the warden.

In Santana v. Aviles, 2011 U.S. Dist. LEXIS 137319 (D NJ, Nov. 30, 2011), a New Jersey federal district court rejected an inmate's claim that as a pre-trial detainee his rights under the 1st Amendment and RLUIPA were violated when, during a 9-month unit lock-down, he was denied the right to attend church services.

In White v. Linderman, 2011 U.S. Dist. LEXIS 138375 (D AZ, Nov. 29, 2011), an Arizona federal district court permitted an inmate who believed in Messianic Judaism to move ahead with his claim that his rights under federal and state law were infringed when prison authorities refused to provide him with a kosher diet.

In Murray v. Corrections Corporation of America, 2011 U.S. Dist. LEXIS 138305 (D AZ, Nov. 28, 2011), an Arizona federal district court permitted a Seventh Day Adventist inmate to move ahead with his claims against a number of defendants in which he alleged he was denied a religious diet. However the court dismissed the food service company as a defendant because "a Bivens action is only available against federal officers, not private companies acting under color of federal law in operating a prison."

In Burford v. Troutt, (MD TN, Nov. 18, 2011), a Tennessee federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was required to return to his cell when Christian services were being held in the commons area, that there were problems with holding Muslim study sessions, and he was not allowed to wear a kufi.

Delaware Catholic Orders and School Settle Sex Abuse Cases

The Wilmington (DE) News-Journal reported yesterday that 14 Delaware men have settled for $7 million their suits charging sex abuse as children by two employees of a Catholic school.  The plaintiffs were abused in the 1970's and '80s, nine of them by Capuchin Friar Paul L. Daleo, and five by former wrestling coach John J. Fleming, both of whom were employed by St. Edmond's Academy.  The settlement was with the Academy, the Capuchian friars, and Brothers of the Holy Cross who run the school. It also requires the release of names of any others at Capuchin institutions with proven, admitted or credible accusations of child sexual abuse. Claims against religious orders were not part of the Diocese of Wilmington's Chapter 11 bankruptcy reorganization plan approved earlier this year. (See prior posting.)

ACLU Charges FBI With Illegally Collecting Information On Political and Religious Beliefs

In a press release issued Thursday, the ACLU charged that the FBI has been using its community outreach programs-- including its mosque outreach program-- to gather information for intelligence purposes, in violation of the Privacy Act. 5 USC 552a(e)(7) bars federal agencies, with certain exceptions, from maintaining records that describe an individual's exercise of First Amendment rights. An ACLU memo describes and links to the full text of various documents it obtained through Freedom of Information Act requests that led it to conclude that the FBI is illegally collecting and storing information on Americans' political and religious beliefs.

Egyptian Elections Lead To Debate Among Islamists Over Role of Shariah

In the first round of Egyptian elections for the lower house of parliament held this week, two Islamic parties were the winners. As reported by CNN, the relatively moderate Muslim Brotherhood's Freedom and Justice Party took 40% of the vote, while the more fundamentalist Noor Salafi Movement took 20% of the vote. The New York Times today analyzes at length the internal debate this has caused. Here are some excerpts from the analysis:

[Salafist] Sheik Shahat ...  and his allies are demanding strict prohibitions against interest-bearing loans, alcohol and “fornication,” with traditional Islamic corporal punishment like stoning for adultery.

The unexpected electoral success of the Salafis ... is terrifying Egyptian liberals and troubling the West. But their new clout is also presenting a challenge to the Muslim Brotherhood, in part by plunging it into a polarizing Islamist-against-Islamist debate over the application of Islamic law in Egypt’s promised democracy.... 

The Brotherhood ... is at its core a middle-class missionary institution, led not by religious scholars but by doctors, lawyers and professionals.... [I]ts leaders have sought to avoid potentially divisive conversations about the details of Islamic law that might set off alarms about an Islamist takeover. But their evasiveness on the subject has played into long-term suspicions of even fellow Islamists that they are too concerned with their own power.

Open Policy On Courthouse Displays Results In Unusual Mix

In Leesburg, Virginia, the first of  9 or 10 holiday displays on the Louden County Court House grounds will go up this week end.  As reported last month by Leesburg Today, after an unsuccessful effort in 2009 to end all holiday displays in Courthouse Square-- which would have included a manger scene and a Christmas tree that usually were placed there-- the county settled on a first-come first-served policy for December displays.  The first 10 (now reduced to 9 because of concern about a tree in one location on the grounds), are a mixed bag. They include a creche, two displays from atheist groups, a display of a letter from Jesus, a Santa on a cross to decry the materialistic nature of the holiday, and two displays from members of the Church of the Flying Spaghetti Monster. [Thanks to Scott Mange for the lead.]

South Dakota High Court Says Clergy Abuse Case Barred By Statute of Limitations

In Iron Wing v. Catholic Diocese of Sioux Falls, (SD Sup. Ct., Nov. 30, 2011), the South Dakota Supreme Court held that a lawsuit filed in 2008 by a victim of clergy sexual abuse committed over 40 years earlier is barred by the statute of limitations.  Plaintiff claimed he was sexually abused by a nun and a priest at a boarding school he attended. SDCL 26-10-25 requires the suit to be brought "within three years of the act alleged to have caused the injury or condition, or three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later." The court said:

“Inquiry notice is determined by an objective standard.” ...  Although Iron Wing perhaps subjectively could not “connect the full extent of his injuries to the sexual abuse, he was aware of enough facts to put him on inquiry notice.”... He knew he had been abused by two members of a religious order beginning when he was age ten and resuming at age thirteen, because of this abuse he was angry and harbored hatred against the church and its priests and nuns from the time he was in the eleventh grade, he left the school because of the abuse, and he never forgot the abuse. These circumstances were sufficient to “‘prompt[] a reasonably prudent person to seek out information regarding his injury or condition and its cause.’”

AP reports on the decision.

Rhode Island's "Holiday Tree" Provokes Criticism

Rhode Island Gov. Lincoln Chafee has generated controversy after a press release announcing a "holiday tree lighting" to be held in the Statehouse Rotunda on Dec. 6. AP reported this week that critics are upset he is not calling it a "Christmas tree." Last January, the Rhode Island House of Representatives passed a resolution (full text) providing:

That it is the policy of the state that state officials and departments refer to the tree customarily erected or displayed in celebration of the period from Thanksgiving of each year to January of the following year as a "Christmas tree" and not as a "holiday tree" or other non-traditional terms...

However Chafee says he is merely respecting the state's history of religious tolerance.  He added that lawmakers who are upset should instead focus their energy on feeding the hungry. A press release from Liberty Counsel yesterday reported that John Leyden, the owner of Big John Leyden Christmas Trees, who donated the tree that will be lit this year says he may now take it back.

Obama and Family Light New National Christmas Tree

AP reports that yesterday President Obama, along with his family, attended the lighting of the National Christmas Tree on the Ellipse. In his remarks (full text) before he and his family lit the tree, Obama said in part:

More than 2,000 years ago, a child was born to two faithful travelers who could find rest only in a stable, among the cattle and the sheep.  But this was not just any child.  Christ’s birth made the angels rejoice and attracted shepherds and kings from afar.  He was a manifestation of God’s love for us.  And He grew up to become a leader with a servant’s heart who taught us a message as simple as it is powerful:  that we should love God, and love our neighbor as ourselves.  

That teaching has come to encircle the globe.  It has endured for generations.  And today, it lies at the heart of my Christian faith and that of millions of Americans.  No matter who we are, or where we come from, or how we worship, it’s a message that can unite all of us on this holiday season.  

So long as the gifts and the parties are happening, it’s important for us to keep in mind the central message of this season, and keep Christ’s words not only in our thoughts, but also in our deeds.

While this is the 89th year for the lighting ceremony, this year the ceremony took place using a tree that was newly planted in March after strong winds in February toppled the previous tree that had been used since 1978.

Court Rebuffs New Claims By Officer Disciplined For Refusing To Attend Event At Mosque

In Fields v. City of Tulsa, 2011 U.S. Dist. LEXIS 136522 (ND OK, Nov. 28, 2011), an Oklahoma federal district court rejected an attempt by a Tulsa police officer to file a second amended complaint in his suit against the Tulsa Police Department.  Officer Paul Fields was disciplined by the Department when he refused to attend, and refused to require officers under his command to attend, a "Law Enforcement Appreciation Day" hosted by the Islamic Society of Tulsa at a local mosque. Fields wanted to add a 1st Amendment speech claim and a claim under the Oklahoma Religious Freedom Act. In rejecting Fields' religious freedom arguments, the court said:

Fields argues his religious beliefs were substantially burdened because the defendants punished him for refusing "to engage in conduct that was contrary to his religious beliefs (i.e., attending the place of worship of another religion and being subjected to proselytizing by that religion)."... However, nothing in Fields' proposed Second Amended Complaint suggests that Defendants' actions in any way inhibited or curtailed Fields from practicing his religion.... Although Fields alleges that officers who attended the event were subjected to proselytizing, nowhere does he allege that such presentations were mandatory or that any such presentations would have inhibited or curtailed Fields from practicing his sincerely held religious beliefs....

(See prior related posting.) Yesterday's Tulsa World has more background on the decision.

ABA Names Religion Clause Among Top 100

I am pleased to announce that the editors of the ABA Journal today announced they have selected Religion Clause as one of the top 100 legal blogs. This is the 4th time in 5 years that Religion Clause has been on this list.  The 100 blogs are in 12 categories, and the ABA is now asking readers to vote for their favorite blog in each category.  Religion Clause is one of 14 blogs in the "Niche" category.  If you are a fan of Religion Clause, I hope you will vote for it here.  The ABA website will ask you to register before voting to prevent "ballot box stuffing." Voting ends Dec. 30.

"Tebowing" By Marines-- Church-State Issue or Silliness?

Occasionally the line between "silliness" and a true church-state issue is blurred.  Here is the latest example.  Last month, Yahoo! Sports explained a new fad known as "Tebowing," inspired by now-Denver Broncos quarterback Tim Tebow who is known for his displays of his Christian religious faith. According to an NFL posting, Tebowing is:

the practice of posing on bended knee as if deep in prayer, which spread across the Internet with amazing speed after [Tebow] was photographed in such a pose during a comeback win at Miami.

Tebow's reaction to the craze:  "Someone told me the greatest form of flattery is impersonating somebody." A Tebowing website is filled with photos of the practice.

The latest question arises, however because the Military Times last week published a photo of a dozen marines in formation in uniform on the football field performing "their version of 'Tebowing' before the Broncos-Jets game on Nov. 17."  It is not clear from the photo why they are there. The Military Times also explains Tebowing: "The trend pokes fun at Tebow's penchant for dropping to a knee in prayer, with his elbow on his knee and his fist under his bowed head." So the question is how to regard this display of Marines in uniform.  There is potentially a church-state issue if the Marines are there in some official capacity-- endorsing or, on the other hand, mocking, Tebow's religious beliefs.  Or maybe it is just silliness to which we should apply the legal maxim "de minimis non curat lex"-- the law does not concern itself with trifles. God and Country blog yesterday also  commented on the photo of the Marines.

German Court Says School Can Stop Student From Praying To Preserve Order

Germany's Federal Administrative court yesterday ruled that while a student's right to pray at school is constitutionally protected, a school may ban a student from praying when it disrupts the school's operations.  The Local and Al Jazeera both report on the decision that involved a Muslim student who, with several others, laid down his jacket in the school hallway between classes and prayed. The school's principal objected, in part because severe conflicts had already broken out among Muslim students over interpretation of the Qur'an.

Catholic University Cleared In Challenge To Same-Sex Dorms

In a press release yesterday, Catholic University announced that the D.C. Office of Human Rights has dismissed the complaint filed by George Washington University law professor John Banzhaf challenging as discriminatory Catholic University's elimination of mixed-gender dormitories on campus. The 16-page opinion in In re Banzhaf v. Garvey, (DC OHR, Nov. 29, 2011), reviews at length the arguments by both sides. Among the University's claims was that "co-ed dorms contribute to an atmosphere that is incompatible with the university's religious mission," and that its decision is protected by the Religious Freedom Restoration Act. Prof. Banzhaf disagreed arguing that the University's moral and ethical concerns are secular ones, not basic religious tenets.  In upholding the University's policy, the OHR held broadly that:

the DCHRA does not forbid colleges and universities from making sex-based distinctions between students. We agree that to follow Complainant's reasoning would include a prohibition on same-sex bathrooms, locker rooms, and sports teams, which would lead to absurd results.

Former Employee Sues Na'amat For Religious Discrimination

The New York Daily News reports on a religious discrimination lawsuit filed Tuesday by Marshall Garvin against his former employer, Na'amat USA (a Jewish social service agency) and his supervisor there, Susan Schwartz. Garvin says he was fired immediately after he complained to Na'amat's president about his treatment by Schwartz in connection with his leaving work in order to say Kaddish for his mother who died in January. Observant Jews say the Kaddish prayer 3 times each day for 11 months at religious services after a parent dies. Garvin says that Schwartz phoned several local synagogues and told him which ones he could attend, harassed him about where he was, and kept him from attending services around 15 times. Na'amat says Garvin was laid off in a reduction of force. Apparently Garvin in the past won two settlements in religious discrimination cases against the U.S. Postal Service, where he worked for over 30 years.

Federal Election Commission Releases Enforcement Files On Catholic Group's Robocalls

BNA's Daily Report for Executives [subscription required] reports that on Nov. 25, the Federal Election Commission released documents in an enforcement case against Informed Catholic Citizens (ICC), a 501(c)(4) non-profit organization.  The  case grew out of a complaint (full text) filed in 2008 by the Freedom From Religion Foundation. At issue were robocalls featuring a Catholic priest supporting John McCain over Barack Obama in the Presidential election because of their respective positions on abortion.  In January 2011, the FEC voted unanimously that the call involved express advocacy and there was reason to believe that ICC had violated the Federal Election Campaign Act by failing to report an independent expenditure and failing to include a disclaimer stating that ICC had paid for the call. (FEC Certification). A General Counsel's Report concluded, however, that because of the low dollar amount at issue, no further action should be taken.  A vote of the FEC in October split 3-3 on that recommendation. Instead the Commission voted 5-0 to send ICC a letter of caution and close the file. However on Oct. 21, the 3 Democratic members of the Commission released a Statement of Reasons why they preferred to seek a statutory penalty of $7500 against ICC. They contended that "while the call may have been relatively inexpensive, it appears to have reached almost 70,000 recipients."

New York Trial Court Lets Open Meeting Challenge To Same-Sex Marriage Law Continue

In New Yorkers for Constitutional Freedom v. New York State Senate, (NY Sup. Ct. Livingston Co., Nov. 18, 2011), a New York trial court refused to dismiss a challenge to the procedures used by the New York legislature in enacting the Marriage Equality Act that legalizes same-sex marriage.  The court held that the complaint presents a justiciable issue as to whether the Senate violated New York's Open Meetings Law when the governor held a meeting with all the Republican members of the Senate to attempt to convince them to break their party's opposition to the bill and vote for it. The court dismissed a challenge to the governor's certification that waived the requirement that a bill be presented to legislators at least three days before a vote, even though, in the court's view the governor's statement of necessity for a more rapid vote was "logically and clearly ... disingenuous." LIberty Counsel issued a release calling the decision "a victory for the people of New York and a setback to the political arm-twisters who tried to thwart the open meetings process." (See prior related posting.)

Dissident Hasidic Faction Loses Establishment Clause Challenge To Town's Government

In Kiryas Joel Alliance v. Village of Kiryas Joel, (SD NY, Nov. 28, 2011), a New York federal district court dismissed a series of claims brought by a dissident faction within the Village of Kiryas Joel (NY), an Orthodox Jewish Hasidic enclave.  The court describes the claims as follows:

Plaintiffs ... bring this action alleging that the Village is a "theocracy," the affairs of which are so "inherently infused by, and entangled, with religion" that its "very existence" violates the Establishment Clause....

Behind the suit is a long-standing and much-litigated dispute between two factions of the Satmar Hasidim over which faction's rabbi should be the leader of the community. The dominant faction that controls the main synagogue (Congregation Yetev) and which holds political offices in the community is led by Grand Rebbe Aron Teitelbaum. (See prior related posting.)  Plaintiffs argue that the Establishment Clause has been violated because:

the Mayor of the Village holds a leadership position in Congregation Yetev, and ... his "dual religious and governmental roles" operate to establish an official faith becuase his religious beliefs trump his governmental role with respect to his actions as Mayor...; [and] all the other Village officials are members of Congregation Yetev, and therefore are controlled by the Grand Rebbe's dictates....

The court held, however that:

the Supreme Court held in McDaniel v. Paty ... that the Establishment Clause does not bar an individual from holding public office simply because he is a member of the Clergy.

The court also rejected on various pleading and procedural grounds-- including res judicata and standing-- several claims by plaintiffs alleging zoning and other actions by defendants that discriminate against the dissidents and their synagogue. However one claim rejected on standing grounds was dismissed without prejudice so it could be refiled with adequate allegations. That was a claim that the town's Community Room Law that requires builders to include a community room in residential developments violates the Establishment Clause because all but one of the community rooms is used as a synagogue.

The Hudson Valley Times Herald-Record and the Mid-Hudson News both report on the decision. [Thanks to Failed Messiah for the link to the decision.]

Azerbaijan Government Agency Busy Examining Religious Literature

According to a report by News.Az yesterday, one of the main roles of Azerbaijan's State Committee for Work with Religious Organizations is the review of religious literature and texts that religious groups wish to distribute in the country. In 2010, the Committee reviewed 18.052 items and found 348 inappropriate for distribution.  In the first 9 months of this year, the Committee reviewed 15,051 items and found 47 inappropriate for distribution.

Michigan Legislature Passes Anti-Bullying Law, Dropping Religious Exemption

Michigan's state Senate yesterday passed the House version of "Matt's Safe School Law," an anti-bullying bill. (Full text of HB 4163). As reported by the Huffington Post, in doing so the Senate gave up on a much more controversial version it had passed earlier which exempted from coverage statements of sincerely held beliefs or moral convictions. That version was strongly criticized by those claiming it would create a religious exemption for bullying of gay and lesbian students. (See prior posting.) HB 4163 contains no similar exception, and requires public schools to adopt anti-bullying policies that prohibit bullying "without regard to its subject matter or motivating animus."

Courts Drawn Into Dispute Over Recall Petitions Circulated By Churches

Earlier this month, an El Paso, Texas church and its pastor filed a federal lawsuit challenging on 1st and 14th Amendment grounds the city's enforcement against churches of a provision of the Texas Election Code that bans corporations from circulating petitions to call an election. (TX Election Code Sec. 253.094). The complaint (full text) in Hoyt v. City of El Paso, Texas, (WD TX, filed 11/17/2011), was filed after the city invoked the state law provision to attempt to stop churches from circulating recall petitions aimed at the city's mayor and two city council members for their votes to restore health benefits to same-sex and unmarried domestic partners of city employees. (See prior posting.) Alliance Defense Fund announced the filing of the lawsuit. Meanwhile, according to KTSM News and an ADF release, Monday in a state court lawsuit brought by the mayor against Tom Brown Ministries, Word of Life Church of El Paso, El Pasoans for Traditional Family Values, and other local residents, the judge refused to issue a preliminary injunction to stop the recall election. The mayor argued that signatures collected in churches on the recall petitions were invalid.