Indian Medicine Man Sues Claiming Tax Lien Infringes His Religious Liberty

Last month, Jonathan Smith who is a Medicine Man (i.e. spiritual leader) in the Shinnecock Indian Nation filed a federal lawsuit claiming that imposing federal income tax on him, filing a tax lien and seizing funds from his bank and brokerage accounts violated his religious liberty.  The complaint (full text) in Smith v. Elkins, (ED NY, filed 12/7/2011), claims that:

Smith's traditional spiritual activities as a Medicine Man are self-funded from Smith's own assets, including use of funds from Smith's personal and business bank accounts.... 

Smith's spiritual activities are, in part, directed at helping Shinnecock and other Indian peoples heal and overcome the personal and spiritual difficulties which have and continue to afflict them as a People due to their history at the hands of the United States Government and the British Crown over the last 400 years, a history which is passed on generation to generation through traditional oral traditions.

Smith argues that the tax assessment, the lien, and the levy, are prohibited by the free trade provision of The Fort Albany Treaty, 1664; by the Indian Religious Freedom Act of 1978, by the Religious Freedom Restoration Act, and by Art. I, Sec. 8 of the Constitution. The Dec. 22 New York Daily News reported on the filing of the lawsuit.  In 2008, in Smith v. Everson, (ED NY, March 21, 2008), a federal district court dismissed Smith's similar challenge to the assessment of taxes and penalties on him, holding that jurisdiction over that claim lies in the Tax Court.

EEOC Charges Developer With Retaliation Against Rastafarian Security Officer

The EEOC announced yesterday that it has filed a federal lawsuit against Grand Central Partnership, Inc. for violating a prior consent decree and committing new illegal acts in firing a black Rastafarian security officer 3 months after he complained to the EEOC about threats and his supervisor's ignoring of them.  Grand Central Partnership is a non-profit developer of the area in New York City around Grand Central Terminal.  The earlier consent decree, entered in 2009, promised accommodation of religious practices of Rastafarian security officers. New allegations claim that a non-Caribbean security officer threatened to shoot and kill a group of Rastafarian officers, and a white security supervisor made light of the threat.  The officer who was fired complained about that supervisor's conduct and his past racially discriminatory threats.

Fired Muslim Bookkeeper Settles Suit Against Catholic Diocese

The Lehigh Valley Morning Call reported yesterday on the settlement of a federal lawsuit that had been filed against the Catholic Diocese of Allentown (PA) by a woman who worked as a bookkeeper at a Catholic Church in Easton (PA). Plaintiff Omayma Arafa, a Muslim from Egypt, claims she was fired from her position in retaliation for her complaining about insensitive treatment she suffered in relation to her religious beliefs after Monsignor Edward Zemanik was assigned to the church.The diocese says that Arafa's position was eliminated as a cost-savings measure. The terms of the settlement have not been disclosed.

Samoan Time Change Poses Sabbath Observance Problems

As has been widely reported, last week the Pacific island nation of Samoa (and its neighboring island, Tokelau) effectively moved to the other side of the International Date Line by aligning their official time with Australia and New Zealand. These countries are Samoa's most important trading partners and emigration destinations.  Samoa and Tokelau carried out the change by moving immediately from Thursday Dec. 29 to Saturday Dec. 31-- skipping Friday.  According to JTA this move has posed a unique problem for Seventh Day Adventists and Jews. When should they celebrate the Sabbath on Samoa?  Most Seventh Day Adventist churches have decided to now adopt Sunday as the day of rest.  Apparently there is only one permanent Jewish resident in Samoa, and two Jewish Peace Corps volunteers.  Nevertheless, a Baltimore rabbi, Dovid Herber, who is an expert on Jewish law and astronomy, has written a two-page halachic (Jewish legal) opinion on the issue. He concludes that it has always been questionable when to observe the Sabbath on Samoa, so Jews should keep the Sabbath for 49 hours to make sure they have the correct day. Before the Date Line change, that meant from sunset Thursday to when it became dark on Saturday. After the change, this should move to begin the 49 hours at sundown on Friday and end Sunday night. Voz Is Neias? has more detailed information on Rabbi Heber's opinion, as well as on conflicting opinions of other rabbis who say the Sabbath should be observed on whatever day the local population calls Saturday. In 1997, Rabbi Heber wrote a longer article on halachic issues posed by the International Date Line.

ACLU Sues Library Over Internet Filter That Excludes Minority Religious Beliefs

The ACLU announced yesterday that it has filed a federal lawsuit on behalf of a library patron against the Salem, Missouri Public Library for unconstitutionally blocking Internet access to websites that discuss minority religious beliefs. The complaint (full text) in Hunter v. City of Salem Missouri, (ED MO, filed 1/3/2012), alleges that the library subscribes to an Internet filtering service that allows the library to choose categories of websites to which it wishes to deny access on its publicly available computers.  The library included the "occult" category in its filter profile, even though that category includes "numerous websites discussing minority religions, religious practices, and beliefs from a positive or neutral viewpoint." The library also blocks the "criminal skills" category, even though that includes websites "related to Native American cultural and religious history and the Wiccan Church."  Plaintiff alleges that this practice violates her 1st Amendment right of access to speech and violates the Establishment Clause by favoring some religious viewpoints over others. AP reports on the lawsuit.

Suit Challenges Denial of Charter School Application By Minister

The Orange County Register last month, in an editorial, reported on a lawsuit filed on Dec. 9 against the Compton (CA Unified School District challenging its two denials of a charter school application filed by a Christian minister.  The application by Charles Patrick, pastor of Sunago Christian Fellowship Church, was rejected because of Patrick's religious leadership position in the community. Apparently the school district relied on provisions in California's constitution (Art. IX, Sec. 8) that bar spending of public funds to support any sectarian school. Patrick, however, says he was not applying on behalf of his church. He says he wants to run a non-religious charter school at a safe location in the city. The lawsuit claims that the school board's action violates the 1st Amendment by denying funding intended to be used for a secular purpose merely because of the applicant's religious affiliation.

Goldman Sachs Enters Islamic Finance Market Amid Some Criticism

Reuters yesterday reported on controversy that is being caused by the entry of the large U.S. investment banking firm, Goldman Sachs, into the Islamic finance market. In an attempt to bring greater sophistication to the sukuk market, Goldman created a Cayman Islands entity that will issue financial instruments based on a cost plus profit arrangement to avoid payment of interest.  The sukuk program has been registered for trading on the Irish Stock Exchange. An Islamic finance analyst in Saudi Arabia, however, has raised concern that Goldman might use proceeds of its sukuk program to fund its conventional banking activities or that the sukuk might trade on the Irish Stock Exchange at other than par value-- which would be in violation of sharia law. The managing director of an Islamic finance advisory firm rejects this speculative criticism as groundless.

Saudis Will Enforce Ban On Salesmen In Women's Apparel Shops, Despite Clerical Objections

According to AP, Saudi Arabia yesterday said it will begin to enforce a 2006 law that bars men from working in women's apparel and cosmetics shops. The law has not been enforced up to now because Muslim clerics oppose women working in places where men and women congregate, such as malls.  Saudi Arabia's most senior cleric said: "a woman standing face to face with a man selling to him without modesty or shame can lead to wrongdoing."  However Saudi women, unhappy about having to buy lingerie from men, have pressured the government to place women in these stores.  The new enforcement will begin Thursday and will cost thousands of men their sales jobs. Their positions will be taken largely by female South Asian migrants. Over 28,000 female workers have applied for the new positions.

ACLU Complains About Christian Athlete Speakers At Schools

Sunday's Kansas City Star reports that the ACLU is raising questions with the St. Joseph, Missouri school district about the religious content of presentations made by motivational speakers in the schools. The speakers were arranged through the Fellowship of Christian Athletes, which says it is careful not to cross the line in church-state matters. The ACLU's letter to the district attorney complaining about the situation focuses particularly on religious motivations reflected in various e-mails from Cindy Crouse, the school district's coordinator of guidance and counseling. For example, in describing a mother's complaints about the speakers, Crouse said: "Satan was at work today."  The ACLU is also concerned about use of the school assemblies to promote religious events taking place elsewhere. The school district's attorney says that the school has followed the law, and that it will remind those involved with programs that they cannot let their personal faith interfere with their job duties.

Indian Government Sets New OBC Sub-Quota In Bid For Muslim Votes

Over the last ten days, the press in India has been filled with commentary on the Indian government's December 22 decision (CNN) to create a 4.5% sub-quota for economically and socially disadvantaged non-Hindu minorities-- Muslims, Christians, Sikhs, Buddhists and Zoroastrians-- within the existing 27% Other Backward Classes (OBC) quota. The quotas create access to government jobs and education. Many more Muslims are designated as OBCs than are members of the other non-Hindu religious minorities.  In December 2009, the National Commission for Religious and Linguistic Minorities submitted a report to Parliament recommending a 10% quota for Muslims, along with 5% for other minorities. (See prior posting.) The government's December decision to set a new sub-quota is widely seen as an attempt to attract Muslim votes in legislative assembly elections to be held in February in the state of Uttar Pradesh. An example of reaction to the new quota, however, is a Jan. 1 article from the Times of India that contends the new rules will hurt Muslims.  It quotes the founder of the All-India Muslim OBC Organisation, who says:

Besides pitting minority OBCs against Hindu OBCs, the educationally and socially weak Muslim OBCs will not be able to compete with Sikh and Christian OBCs in the race to grab jobs and admissions. The advantage of being part of the general OBCs is that you remain invisible and get some benefits. But here, the competition will be tougher as the share has reduced.

Israel High Court Refuses To Create General Procedure To Change Status To "No Religion"

As previously reported, in Israel last September a Tel Aviv District Court granted a petition by author Yorum Kaniuk, ordering the Interior Ministry to allow Kaniuk to change his status on the country's population registry from "Jewish" to "no religion." (See prior posting.)  Kaniuk then petitioned the High Court of Justice asking it to provide a method for citizens who want to be listed as having "no religion" to be able to do so without having to go to court in each case. The Jerusalem Post reports that in an opinion released Saturday night, a 3-judge panel of the High Court of Justice dismissed Kaniuk's petition, saying that it presents a "general topic that does not address any specific individual or any specific difficulty and which therefore cannot be addressed effectively [by the court]."

In India, Conversion Law Is Used By Hindu Family To Oppose Daughter's Marriage

The Times of India on Saturday reported on a case in which parents in Ahmedabad (in Gujarat state in India), unhappy with their daughter's choice of husbands, are attempting to use Gujarat's Freedom of Religion Act that aims at coerced conversions to undo or undercut the marriage.  The bride, from a Hindu family, converted to Islam before her marriage last October to her Muslim husband.  In November, the bride's mother filed a complaint with the police claiming that her daughter did not obtain the required permission from the district collector to convert to another religious faith.  On Dec. 22, the daughter and the Muslim scholar who converted her were arrested, placed in custody and denied bail.  A hearing in the case is scheduled for today in the city sessions court. The daughter claims she filed an affidavit before the marriage stating she was not forced into conversion. She plans to challenge the Religious Freedom Act's provisions on conversion. (See prior related posting.)

Israeli Legal Decisions Fail To Solve Disputed Ownership of Church of Holy Sepulchre Chamber

On Friday, Haaretz reported on an inconclusive decision by an Israeli magistrate's court last month in a battle over ownership of a small chamber in the basement of the Church of the Holy Sepulchre in Jerusalem.  The case began in 1996 when employees of a grocery store in the Christian Quarter of the Old City of Jerusalem discovered that Coptic monks were removing soil from an area under the grocery. The Coptic monks had reached the chamber through a horizontal tunnel from their chapel in the Church of the Holy Sepulchre.  A vertical entry connects the grocery store-- which rents from a Muslim religious trust that owns the building-- to the same chamber. After a stabbing and kidnapping over the dispute, the Muslim Budri family religious trust took the Coptic Church to court to settle ownership rights. During the 15 years of litigation, the court has had to examine numerous obscure historical documents.  Also, the case at one point made it up to the High Court of Justice which ordered the Prime Minister's Office to determine whether the disputed basement is a holy site.  A law still in force from the British Mandate period prohibits courts from deciding that issue.  Last month two rulings came down. The Prime Minister's Office ruled that the basement is not a holy site, and Jerusalem Magistrate's Court Judge Oded Shaham ruled that neither side had proved ownership of the basement, saying that the parties' rights are "inherently unclear."  Both sides plan to appeal the judge's ruling, and the Coptic Church is considering appealing the ruling by the Prime Minister's Office.

Hungary Again Passes Restrictive Religion Law

According to Focus News Agency, Hungary's Parliament last Friday passed a restrictive new Law on Churches which recognizes only 14 religious faiths (the so-called traditional faiths), instead of the 300 that have previously been recognized.  Faiths not specified in the new law are permitted to apply to Parliament for recognition if they have been operating in Hungary for at least 20 years. Two-thirds approval of Parliament is required for recognition. All Islamic, Buddhist and Hindu congregations will be required to apply under this provision. Hungary's Constitutional Court struck down an earlier version of the law last month, but did so only on procedural grounds. (See prior posting.)

A Bibliography Plus Forthcoming Books of Interest

The Association of American Law Schools Section on Law and Religion has issued its Annual Newsletter for 2011, containing an extensive bibliography of law-and-religion books and articles published during 2011, as well as a listing of relevant blogs.

Here are some just-published and forthcoming books that may be of interest to Religion Clause readers:

• John M. Barry, Roger Williams and the Creation of the American Soul: Church, State and the Birth of Liberty, (Viking Adult, Jan. 5, 2012), reviewed by the New York Times.
• Katherine Stewart, The Good News Club: The Christian Right's Stealth Assault on America's Children,(Public Affairs Books, Jan. 24, 2012).
• John D. Brewer, Gareth I. Higgins & Francis Teeney, Religion, Civil Society, and Peace in Northern Ireland, (Oxford Univ. Press, Dec. 2011).
• Jeremy Waldron, The Harm in Hate Speech, (Harvard Univ. Press, May 2012).
• Michael P. Winship, Godly Republicanism: Puritans, Pilgrims, and a City on a Hill, (Harvard Univ. Press, April 2012).
• Melanie Heath, One Marriage under God: The Campaign to Promote Marriage in America, (NYU Press, April 2012).
• Yunas Samad, The Pakistan-US Conundrum: Jihadists, the Military and the People–The Struggle for Control, (Columbia Univ. Press, Dec. 2011).
• Amanda Porterfield, Conceived in Doubt: Religion and Politics in the New American Nation, (Univ. of Chicago Press, May 2012),

Recent Prisoner Free Exercise Cases

In Shaw v. Parker, 2011 U.S. Dist. LEXIS 148286 (D DE, Dec. 27, 2011), a Delaware federal district court dismissed an inmate's complaint that his rosary beads had been confiscated, finding that the strength of the cord posed a security threat. They were returned and then retaken. The court ordered plaintiff why the complaint about this should not be dismissed for non-prosecution.

In Hennis v. Tedrow, 2011 U.S. Dist. LEXIS 148316 (WD PA, Dec. 27, 2011), a Pennsylvania federal district court dismissed 8th Amendment and equal protection claims by a Rastafarian inmate who claims he was ordered to cut his dreadlocks and that he was denied religiously-mandated vegetarian meals during a 2-day lock down.

In Johnson v. Williams, 2011 U.S. Dist. LEXIS 148445 (D OR, Dec. 22, 2011), an Oregon federal district court rejected an inmate's claim that the Establishment clause was violated by prison authorities' refusal to recognize Satanism as a religion. It also rejected a claim that his free exercise rights and his rights under RLUIPA were infringed when he was not permitted to possess The Satanic Bible. The court also upheld disciplining plaintiff for sending out White supremacist Nazi drawings.

In Smith v. Mohr, 2011 U.S. Dist. LEXIS 148579 (ND OH, Dec. 21, 2011), plaintiff is a Jewish prisoner who has purchased kosher meals from the commissary because he dislikes the prison's kosher meals. An Ohio federal district court rejected his claims that his rights were infringed when, after he was sent to the segregation unit for conduct offenses, he was denied access to the commissary or food stored in his cell and was limited to the prison's kosher meals.

In Abdul-Aziz v. Ricci, 2011 U.S. Dist. LEXIS 149163 (D NJ, Dec. 28, 2011), a New Jersey federal district court rejected an inmate's complaint that his rights were violated when prison authorities did not accept donated Halal meals with meat, and did not allow Islamic inmates to retain prayer oils in their cells. The court also found no evidence that the prison's vegetarian meals are contaminated with meat products.

Efforts Continue To Get Public Display of Washington's Letter To Newport Hebrew Congregation

The Forward last week reported on efforts to restore to public view an important document in the history of religious freedom in the United States-- George Washington's Letter to the Hebrew Congregation in Newport, Rhode Island. In the 1790  letter, Washington says:

It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

The letter is owned by the Morris Morgenstern Foundation which is controlled by reclusive private collector Richard Morgenstern.  Until 2002, the letter was displayed, on long-term loan, at the B'nai B'rith Klutznick National Jewish Museum in Washington, D.C.  That museum closed in 2002 and its contents-- apparently including the famous letter-- were placed in storage.  The National Museum of American Jewish History and the Library of Congress have both tried to persuade Morgenstern to again place the letter on public display. Apparently the Library of Congress is still negotiating on the matter.

TRO Denied To Churches Planning To Deny Use For Civil Unions-- Claim Is Non-Justiciable

In Emmanuel Temple v. Abercrombie, (D HI, Dec. 30, 2011), an Hawaii federal district court denied a temporary restraining order to prevent enforcement against two churches of Hawaii's public accommodation anti-discrimination laws. Plaintiffs feared enforcement based on their planned refusal to make their facilities available to those who might seek to use them for celebrating civil unions under Hawaii's civil union law that is effective on Jan. 1.  The court concluded that the churches' claim is not justiciable because their plans to violate the anti-discrimination law in the future are vague and any threat of enforcement of the law against them is highly speculative. (See prior related posting.) The Honolulu Star-Advertiser and Honolulu Civil Beat report on the decision.

Happy New Year 2012 To Religion Clause Readers!

Dear Religion Clause Readers:

Happy New Year! As we enter 2012, I want to again thank all of you who read Religion Clause-- both long time followers (some of you have been with me since the beginning), as well as those who have discovered the blog more recently. And thanks to all of you who send me leads to new developments or who alert me to needed corrections or to your concerns about coverage of particular developments. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want mentioned, I will be happy to honor that request if you let me know when sending me information.

It has been a good year for Religion Clause blog. It was nominated by the American Bar Association as one of the top 100 legal blogs in 2011—the fourth time in five years it has made the list.  The site meter shows that the blog has attracted over 1,143,000 visits since I created it in 2005. Approximately 226,000 of these visits were registered in 2011. This is a decrease of a bit over 7%  compared to 2010.  That decline in visits appears to stem from changes that Google made to its Blog Search page, which no longer includes for everyone visiting it featured postings from popular blogs.  When Google included that in its design, Religion Clause often benefitted from the algorithm it used to select stories that would be featured.

Interested readers continue to have several ways to access Religion Clause—by directly connecting to the home page, connecting through a mobile device to a version formatted for Smart phones, subscribing to the RSS feed through any of the popular RSS readers, through e-mail subscriptions, on Kindle, through Twitter, through Facebook and on Newstex sources such as Lexis.  The Religion Clause sidebar has further information on these alternatives.

Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has made it a widely-recognized authoritative source for keeping up on church-state and religious liberty developments around the world. I am pleased that my regular readers span the political and religious spectrum and include a large number of individuals working professionally dealing with church-state relations and religious liberty concerns.  I was approached twice this year by well-respected portals that wanted me to move Religion Clause to their sites.  Ultimately I decided against doing so in order to maintain Religion Clause’s unique identity.

I continue to be amazed that there is never a day when I am lacking for developments to report. I try to keep the mix interesting and relevant.  I urge you to continue to recommend Religion Clause to your friends and colleagues, and to share posts you like on Facebook and on other social media sites.  This can be done easily by opening the relevant post and clicking on the “Share” button at the bottom of the post.  If you have any general comments or suggestions for Religion Clause's upcoming year, feel free to e-mail me at religionclause@gmail.com.

Best wishes for 2012!

Howard M. Friedman

Maldives Government Response To Islamic Demands Has Complex Background

As previously reported, the government of the Maldives has responded to a December 23 Islamist protest led by opposition parties by ordering all hotel spas closed. Here is more information on the complicated religious-political-economic background and developments in this Island chain that is a popular high end tourist destination.

In 2008, Mohamed Nasheed became the first democratically elected president of the Maldives, defeating long-time President Abdul Gayoom in a run-off election. (Background.) In June 2010, thirteen members of Nasheed’s cabinet resigned en masse, protesting Parliament’s undercutting of government policies. On the same day, police arrested two members of Parliament on bribery charges. They were former President Gayoom’s half-brother. The other was Gasim Ibrahim, head of the Jumhooree Party and owner of a number of tourist resorts. Among the six opposition political parties supporting the pro-Islam demonstration last week was the Jumhooree Party. (Minivan News).

Responding to the demonstrations, the government initially ordered spas at 5 resorts owned by Gasim Ibrahim to close down on the ground that they were in fact engaged in prostitution. (Background). Gasim promptly sued, claiming that the order was issued without any investigation. The court cancelled the closure order while the case was pending. A government spokesman says Gasim is pretending to be a victim for political gain. (Minivan News.) Meanwhile the government expanded the closure order to include all spas and massage parlors, saying it did not know how to differentiate those that were prostitution fronts from those that were not. (Minivan News.) Now the government says it is also considering a ban the sale of alcohol and pork at tourist  resorts, both of which were also demands of the demonstrators. (Minivan News). Apparently alcohol sales are permitted now through the government declaring portions of inhabited islands to be "uninhabited". (Haveeru.) Those sales bring in substantial revenue to the government through its goods and services tax. (Dhonisaurus.) [Thanks to Bill Poser for part of the lead.]

Maldives Orders Resort Spas Closed After Islamic Protests

In the wake of protests last week in the Maldives by the opposition Adhaalat Party seeking an end to "anti-Islamic" activities (see prior posting), the Maldives government yesterday ordered hundreds of luxury hotels to close their spas.  On Islam reports on developments. The tourism industry is a vital part of the Maldives economy, drawing some 850,000 tourists each year to the islands whose total population is under 400,000.  High end resorts on secluded islands can cost tourists up to $12,000 per day.

Russian Orthodox Church Joins Those Critical of Russia's Parliamentary Elections

The New York Times reported yesterday that in Russia, the Russian Orthodox Church has surprisingly joined those that are critical of the recent parliamentary elections. The Church has generally been an ally of Prime Minister Vladimir Putin, but now Church leader Patriarch Kirill I, as well as prominent priests, are speaking out.

Suit Challenges Investigations Into Church Refusals To Host Civil Union Ceremonies

Hawaii's civil union law, permitting same-sex civil unions, enacted in February 2011 (see prior posting) takes effect January 1, 2012. On Wednesday, two Christian churches filed a lawsuit in Hawaii federal district court claiming that individuals who are planning civil union ceremonies have already filed complaints with the Hawaii Civil Rights Commission against churches that refuse to rent their facilities for same-sex civil union and marriage ceremonies. The complaint (full text) in Emmanuel Temple, The House of Praise v. Abercrombie, (D HI, filed 12/28/2011) claims that investigations launched by the Civil Rights Commission have a chilling effect on plaintiffs' free exercise of religion. HRS Sec. 489-3 prohibits discrimination on the basis of sexual orientation in places of public accommodation. Courthouse News Service reports on the filing of the lawsuit.

Zoning Settlement Reached With Unitarian Church

City officials in Wayzata, Minnesota have negotiated a settlement in a RLUIPA lawsuit filed against the city last year by the Unitarian Universalist Church of Minnetonka which has been trying to get  3-acres of land rezoned so it can build a new church. According to yesterday's Minneapolis Star Tribune, the church argued that its rights under RLUIPA and the 1st Amendment were being violated by the city's restrictive zoning ordinance that allows churches in only one of 22 districts.Under the settlement, the city and its insurance company will pay the church $500,000 in damages and attorneys' fees and will help the church acquire two small adjacent parcels of land now owned by the Minnesota Department of Transportation. The church will drop its lawsuit and work through the city's normal application and permitting process. City council must still approve the settlement at its January 17 meeting. After the conference at which the settlement was worked out, Wayzata mayor Ken Wilcox released a statement (full text) which read in part: "We believe the law supports our position and the City has right to control the planning and zoning within its borders through its long-established Comprehensive Planning process. However, it became clear that ending this expensive and detrimental proceeding was in the overall best interest of the citizens of Wayzata."

Many Muslim Leaders Will Boycott NY Mayor's Interfaith Breakfast

AP reports that 15 Muslim leaders will boycott today's annual interfaith breakfast sponsored by New York Mayor Michaael Bloomberg. The leaders are concerned with Bloomberg's support for a police program that gathered information by infiltrating Muslim neighborhoods and mosques. A letter (full text) signed by the 15 invitees and dozens of other Muslim, Jewish and Christian leaders, reads in part:

We believe with heartfelt conviction that during times when a community’s rights are being flagrantly violated its leaders cannot in good conscience appear at a public gathering with the government official who is ultimately responsible and smile for the cameras as if all is well, when we know full well that it is not.... 

This past August, the Associated Press released a series of investigative reports that detailed how, over the past decade since 9/11, the NYPD has been monitoring and profiling virtually every layer of NYC Muslim public life, often with no suspicion of wrongdoing.... According to the investigation, the police department monitored and collected information on New Yorkers at about 250 mosques, schools, and businesses throughout the city, simply because of their religion and not because they exhibited suspicious behavior.

Mayor Bloomberg, the extent of these civil rights violations is astonishing, yet instead of calling for accountability and the rule of law, you have thus far defended the NYPD’s misconduct.

The mayor's office says it still expects some two dozen Muslim leaders to attend the event which is designed to demonstrate the city's diversity.

Zambian Christians Want New Constitution To Reject Gays and Keep Christian Nation

The Christian Post and the Zambian Watchdog both report on a march that was planned for yesterday in Lusaka, Zambia by Christian groups who are demanding that the new constitution being drafted for the country not protect homosexuality. They also want to assure that the new document will retain the declaration of Zambia as a Christian nation that appears in the Preamble to the current Constitution. The demonstration was organized by the Christian NGO Rainbow Coalition, whose spokesman said: "This [homosexuality] is a new concept to our culture which Zambians will not entertain as in Zambia we do not even have local terminology for homosexuality." Between 50% and 75% of Zambians are Christians.

Teacher's Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Becker v. Clardy, (TX App., Dec. 22, 2011), a Texas appellate court applied the ecclesiastical abstention doctrine to dismiss a defamation action brought by a religion teacher in a Catholic parochial school against a fellow religion teacher.  Teacher Kenneth Becker claimed that teacher Carla Clardy made negative comments about him in front of students in her eighth grade religion class. Clardy resigned while an investigation of the incident by the school's principal and pastor was pending. At that point the investigation stopped. According to the court, Becker claimed only damage to his reputation within the Church community, and the substance of his claim was that Clardy violated the Diocese of Austin Policies on Ethics and Integrity in Ministry. Finding that application of the ecclesiastical abstention doctrine is not limited to suits against authority figures, the court concluded:

Becker chose not to sue the school for its lack of action against Clardy, but brought his claims directly against Clardy. A civil court action resolving Becker’s claims then would encroach on the church’s "ability to manage its internal affairs."

Palestinian Police Break Up Fight Between Priests At Church of the Nativity

CNN reports that yesterday Palestinian police in the West Bank city of Bethlehem were sent into the Church of the Nativity to break up a fight that broke out between Greek Orthodox and Armenian priests. The Church is under a complicated joint administration of Roman Catholic, Greek Orthodox and Armenian religious authorities.  The Church is traditionally cleaned by priests between December 25 and the Orthodox celebration of Christmas that comes in the first week of January. During that clean-up, a fight broke out between two priests who were sweeping the Church. The fight quickly escalated until 50 to 60 priests were striking each other with broomsticks. A similar incident occurred in 2007.

USCIRF Urges State Department To Press North Korea On Religious and Human Rights

With the recent death of North Korean leader Kim Jong Il, the U.S. Commission on International Religious Freedom this week wrote Secretary of State Hillary Clinton (full text of letter) urging the U.S. to press North Korea on human rights and religious freedom issues.  The letter reads in part:

The death of Kim Jong Il provides an important opening for clear U.S. leadership.... The growth of religion in North Korea continues to be a perceived threat to the legitimacy of the North Korean ruling family, including the chosen successor Kim Jong Un.  Anyone discovered engaging in clandestine religious activity is subject to discrimination, arrest, arbitrary detention, disappearance, torture, and public execution.... We urge the Administration to clearly signal to North Korea that future political, diplomatic, or economic inducements will require improvements in both human rights and nuclear security issues. 

Russian Court Says Krishna Holy Book Is Not "Extremist"

In Russia yesterday, the Leninsky District Court in the Siberian town of Tomsk dismissed a case brought by the state prosecutor that sought to ban as "extremist" literature a translation and commentary on the Bhagavad Gita. (See prior posting.)  The Hindu reports that the court found no grounds for recognising Bhagavad Gita As It Is, a sacred book of the International Society for Krishna Consciousness, to be extremist.  The court said it is "one of the interpretations of the sacred Hindu scripture, the Bhagavad Gita." Prosecutors had contended that the book created "social hatred" and promoted "violence against non-believers."

Court Allows Pregnancy Centers To Intervene In Establishment Clause Challenge To Informed Consent Abortion Law

In Planned Parenthood Minnesota v. Daugaard, 2011 U.S. Dist. LEXIS 148345 (D SD, Dec. 27, 2011), a South Dakota federal district court permitted two South Dakota crisis pregnancy centers to intervene as defendants in a lawsuit challenging on Establishment Clause and free speech grounds the 2011 changes to South Dakota's informed consent abortion law. The court has already granted a preliminary injunction in the case. The challenged amendments require abortion providers to refer women to a "pregnancy help center" before performing the abortion.  A pregnancy help center is defined as an entity that does not perform abortions and which has as one of its principal missions the providing of education and counseling "to help a pregnant mother maintain her relationship with her unborn child and care for her unborn child." Intervenors are two of the three organizations that have registered as pregnancy help centers. The court however placed limitations on the scope and form of intervenors involvement in the case.

6th Circuit: Kentucky High School Athletic Rule Does Not Discriminate On Basis of Religion

In Seger v. Kentucky High School Athletic Association, (6th Cir., Dec. 21, 2011), the U.S. 6th Circuit Court of Appeals upheld a bylaw of the Kentucky High School Athletic Association designed to prevent member schools from recruiting student athletes by "paying" them to play at the school. The rule limits merit-based scholarships to 25% of tuition and bars accepting aid from sources not under control of the school or its governing board.  Plaintiffs argued in part that the bylaw is discriminatory on the basis of religion because it groups Catholic schools into one classification.  The court rejected the argument, concluding that the bylaw uses the grouping merely as a way to group Catholic schools into a broader category of non-public schools and to define their governing board as the archdiocese in which they are located.

Israeli Prime Minister Orders Action Against Ultra-Orthodox Intimidation Over Modest Dress

On Sunday, The Forward reported that Israeli Prime Minister Benjamin Netanyahu has ordered Israel's Interior Ministry to take strong action against a group of ultra-Orthodox Jews in the town of Beit Shemesh. A television report last week focused public attention on the plight of young girls attending the modern Orthodox Orot Banot school in Beit Shemesh.  Since the school opened last September, girls attending have been cursed and even spit on by a group of extremist Haredi (strictly Orthodox) Jews who believe that the girls' are not dressing modestly enough. The same Haredi are also pushing for gender-segregated bus lines and the designation of parts of the city where women and men would walk on separate sides of the street. A television report on an 8-year old who feared walking the short distance to school has galvanized public sympathy. The mayor of Beit Shemesh ordered city workers to remove signs that directed women to cross the street and not linger in front of a synagogue.  When workers did so, a group of Haredim threw rocks at them and called the municipal workers "Nazis."

At last Sunday's Cabinet meeting, Prime Minister Netanyahu spoke about the issue (full text of remarks), saying in part: "Israel is a democratic, Western, liberal state. The public sphere is open and safe for everyone - men and women alike. There is no place for harassment or discrimination.... The Israel Police are taking, and will take, action to arrest and stop those who spit, harass or raise a hand."

Top 10 Church-State and Religious Liberty Developments For 2011

Here are my nominations for the 2011 Top Ten Church-State and Religious Liberty Developments. The choices are based on the long-range implications of the developments on legal doctrines and on relations between government and religion. I have linked to representative postings on each issue:

1. Legalization of same-sex marriage expands, as religious objections continue to be voiced loudly.  New York passed a same-sex marriage statute and the Obama administration announced it would no longer defend the constitutionality of DOMA while the Defense Authorization Bill assured that military chaplains would not be forced to perform same-sex marriages. Meanwhile litigation over California's Proposition 8 continues and some Catholic social service agencies in Illinois end foster-care and adoption programs to avoid placement with couples in same-sex civil unions.

2. Christian crosses on public property become the focus of litigation. Utah Highway Patrol Association memorial crosses on public property violate the Establishment Clause (10th Circuit). Supreme Court review is denied over dissent by Justice Thomas. The Mt. Soledad Memorial cross violates the Establishment Clause (9th Circuit) and Sunrise Rock Cross litigation continues after a fragmented Supreme Court decision last year.

3. Under pressure from Western countries, the United Nations Human Rights Council and General Assembly pass freedom of belief resolutions that move away from the concept of "defamation of religion."

4. The Supreme Court in Snyder v. Phelps holds that the 1st Amendment protects offensive anti-gay funeral picketing by members of the Westboro Baptist Church.

5. Religion remains an important issue in the battle for the Republican presidential nomination.  Mitt Romney's Mormon faith raises questions for some Christians, while Republican debates have included significant discussion of candidates' attitudes toward church-state matters, religious liberty and Muslims in America.

6. Uncertainty remains on the role of religion in Egypt in the wake of its Arab Spring uprising.  Will religious liberty be assured for Christian Copts? What role will Shariah law play in the country's new constitution and legal system?

7. A measure to ban circumcision makes it onto the San Francisco ballot until a court forces it off on state pre-emption grounds. The proposal was seen by many as reflecting anti-Semitism.

8. The Supreme Court interprets standing narrowly in rejecting an Establishment Clause challenge to Arizona tax credits for contributions to organizations that provide scholarships to private and religious schools. The case is Arizona Christian School Tuition Organization v. Winn.

9. A Canadian trial court upholds Canada' anti-polygamy law against challenges under the Charter of Rights and Freedoms, except for prosecution of minors under the statute.

 10. The Supreme Court in Sossamon v. Texas holds that states which accept federal funding for their prisons retain sovereign immunity to monetary damage claims under RLUIPA.

For comparison, here is a roundup of top 2011 religion developments from BJC blogger Don Byrd  I invite your e-mails (religionclause@gmail.com) if you disagree with my picks.

Omnibus Appropriations Act 2012 -- Provisions On Religious Liberty

On Dec. 23, President Obama signed H.R. 2055, the Consolidated Appropriations Act, 2012. The  lengthy bill contains several provisions of interest to those who follow religious liberty developments (italicized headings are mine):

New Age Belief Employee Training Ban

Title VII of the Financial Services and General Government Appropriation Act, Sec. 714 (at pg. 147):

None of the funds made available in this or any other Act may be obligated or expended for any employee training that— ... (4) contains any methods or content associated with religious or quasi-religious belief systems or "new age" belief systems as defined in Equal Employment Opportunity Commission Notice N–915.022, dated September 2, 1988; or (5) is offensive to, or designed to change, participants’ personal values or lifestyle outside the workplace.

Health Care Contraceptive Coverage Exemptions

Title VII of the Financial Services and General Government Appropriation Act, Sec. 727 (at pg. 151):

(a) None of the funds appropriated by this Act may be used to enter into or renew a contract which includes a provision providing prescription drug coverage, except where the contract also includes a provision for contraceptive coverage.

(b) Nothing in this section shall apply to a contract with— (1) any of the following religious plans: (A) Personal Care’s HMO; and (B) OSF HealthPlans, Inc.; and (2) any existing or future plan, if the carrier for the plan objects to such coverage on the basis of religious beliefs.

(c) In implementing this section, any plan that enters into or renews a contract under this section may not subject any individual to discrimination on the basis that the individual refuses to prescribe or otherwise provide for contraceptives because such activities would be contrary to the individual’s religious beliefs or moral convictions.

(d) Nothing in this section shall be construed to require coverage of abortion or abortion-related services.

Title VIII of the Financial Services and General Government Appropriation Act, Sec. 808 (at pg. 156):

Nothing in this Act may be construed to prevent the Council or Mayor of the District of Columbia from addressing the issue of the provision of contraceptive coverage by health insurance plans, but it is the intent of Congress that any legislation enacted on such issue should include a "conscience clause" which provides exceptions for religious beliefs and moral convictions.

Preservation of Foreign Religious Sites

Title I of the Department of State, Foreign Operations and Related Agencies Appropriations (at pg. 381):

None of the funds appropriated under this heading may be used for the preservation of religious sites unless the Secretary of State determines and reports to the Committees on Appropriations that such sites are historically, artistically, or culturally significant, that the purpose of the project is neither to advance nor to inhibit the free exercise of religion, and that the project is in the national interest of the United States.

USCIRF

US Commission on International Religious Freedom (at pg. 388): A budget of $3 million is appropriated, to remain available until Sept. 30, 2013. However the section also provides that Section 209 of the International Religious Freedom Act is to be amended to substitute "September 30, 2012" for "September 30, 2011". This provision causes the Commission to terminate in 2012, even though HR 2687, also signed by the President on Dec. 23, extends the Commission's life until Sept. 30, 2014.

Natural Family Planning Grants

Title III of the Department of State, Foreign Operations, and Related Programs Appropriations Act (at pg. 392):

[I]n awarding grants for natural family planning under section 104 of the Foreign Assistance Act of 1961 no applicant shall be discriminated against because of such applicant’s religious or conscientious commitment to offer only natural family planning....

Reconciliation Programs

Title VII of the Department of State, Foreign Operations, and Related Programs Appropriations Act (at pg. 465):

Of the funds appropriated by title III of this Act under the headings "Economic Support Fund" and "Development Assistance", $26,000,000 shall be made available to support people-to-people reconciliation programs which bring together individuals of different ethnic, religious and political backgrounds from areas of civil strife and war, of which $10,000,000 shall be made available for such programs in the Middle East

Russian Religious Discrimination

Title VII of the Department of State, Foreign Operations, and Related Programs Appropriations Act (at pg. 470):

None of the funds appropriated under the heading "Assistance for Europe, Eurasia and Central Asia" in this Act may be made available for the Government of the Russian Federation, after 180 days from the date of the enactment of this Act, unless the Secretary of State certifies to the Committees on Appropriations that the Government of the Russian Federation: (1) has implemented no statute, Executive order, regulation or similar government action that would discriminate, or which has as its principal effect discrimination, against religious groups or religious communities in the Russian Federation in violation of accepted international agreements on human rights and religious freedoms to which the Russian Federation is a party....

Austrian Appeals Court Upholds Conviction For Denigrating Muslim Religious Beliefs

Hudson New York reports on a December 20 ruling by Austrian Provincial Appellate Court in Vienna  upholding the conviction of  Viennese housewife Elisabeth Sabaditsch-Wolff under Section 188 of the Austrian Criminal Code for denigrating the religious beliefs of a legally recognized religion.  Defendant was fined the equivalent of $625. The conviction grew out of a 3-part seminar on Islam that Sabaditsch-Wolff presented in 2009 to a political academy linked to the Austrian Freedom Party, during which she said: "Mohammed had a thing for little girls."

RLUIPA Claim Dismissed On Ripeness Grounds

In Guatay Christian Fellowship v. County of San Diego, (9th Cir., Dec. 23, 2011), the U.S. 9th Circuit Court of Appeals, in a 53-page opinion, dismissed on ripeness grounds a church's RLUIPA land use lawsuit.  Since 1986 the church had held services in a recreation building in a San Diego County trailer park.  In 2008, the county notified the trailer park of numerous land use violations, including illegal conversion of the recreation hall into a church.  The county said that a Modification of Use Permit (MUP) was required to use the building for religious assembly. Without filing for an MUP, the church brought suit alleging violations of RLUIPA as well as violations of the 1st and 14th Amendments.  The 9th Circuit said: "We cannot determine if the Church has suffered a 'substantial burden' under RLUIPA until at least one Use Permit application has been submitted." The court also rejected plaintiffs' constitutional claims.

Washington State Court Stops Autopsy After Religious Objections

On Dec. 16, a Washington state Superior Court judge issued an order barring the Pierce County (WA) medical examiner from conducting an autopsy on the body of an Orthodox Jewish man who was found dead in the snow on Mount Rainier.  The Olympian reported on Friday that 54-year old Brian Grobois died on a solo snowshoe hike.  His body was taken to Madigan Army Medical Center where he was pronounced dead and his cause of death was listed on medical records as hypothermia/ cardiac arrest.  However Pierce County Medical Examiner Dr. Thomas Clark thought the cause of death was not clear because the body was covered with bruises, and he wanted to perform an autopsy. The family objected, obtained a TRO from a county court commissioner. The county appealed, but Superior Court judge agreed. The episode produced a good deal of celebrity attention and political pressure on behalf of Grobois' family. The Pierce County Jewish community says it will ask the Washington legislature to enact a statutory provision allowing families to object on religious grounds to an autopsy.

In India, Requiring Violators To Swear To Obey Traffic Rules Irks Religious Leaders

In India, Hindu and Sikh religious leaders are angry at the Traffic Police in the city of Gurgaon.  IANS reported last Friday that the Gurgaon police have launched a new Sensible Driving campaign. Truck drivers found violating the rules on expressways are being fined, but then are also being required to take an oath on the holy book of their own religion, swearing to obey traffic rules in the future. Taking an oath in this way violates religious rules of various sorts depending on the religion involved.

Recent Articles of Interest

From SSRN:

• Dawinder S. Sidhu, Religious Freedom and Inmate Grooming Standards, (December 18, 2011).
• C. Scott Pryor, C. Scott, The Law of Contracts: A Place to Start, (Journal of Christian Legal Thought, p. 7, Winter 2011).
• Hannibal Travis, On the Original Understanding of the Crime of Genocide, (December 20, 2011).
• Chapin Cimino, Campus Citizenship and Associational Freedom: An Aristotelian Take on the Nondiscrimination Puzzle, (William & Mary Bill of Rights, Vol. 20, p. 533, 2011).

From SmartCILP:

• Kimberly L. Alderman, The Designation of West Bank Mosques as Israeli National Heritage Sites: Using the 1954 Hague Convention To Protect Against In Situ Appropriation of Cultural Sites, 44 Creighton Law Review 799-809 (2011).
• 17th Annual International Law & Religion Symposium. Articles by Thomas B. Griffith, Tahir Mahmood, Rassie Malherbe, Iain McLean, Scot M. Peterson, Rafael Palomino, Vicente Prieto, Jeroen Temperman, Zeng Chuanhui, Zhang Qianfan and Zhu Yingping. 2011 Brigham Young University Law Review 597-818.

Russian Court Reverses Extremism Conviction of Jehovah's Witness Leader

In Russia, the Altai Republic Supreme Court on Thursday reversed the religious extremism conviction of a local Jehovah's Witness leader.  RAPSI reports that the Supreme Court cancelled the Gorno-Altaysk City Court's judgment against Alexander Kalistratov, a head of Altai branch of Jehovah's Witnesses who had been sentenced to 100 hours of community service after he published and distributed 48 articles aimed at discrediting other religions.  The Supreme Court said that Kalistratov's actions do not constitute a crime.  The conviction that was under review came only after a second trial. Initially the local court acquitted, the Supreme Court reversed the acquittal and Kalisrtatov was convicted upon retrial. (RAPSI 11/3).

Recent Prisoner Free Exercise Cases

Nelson v. Miller, 2011 U.S. Dist. LEXIS 145431 (SD IL, Dec. 19, 2011), is a case on remand from the 7th Circuit which held that a prison chaplain substantially burdened an inmate's exercise  of religion by requiring that he provide documentation that his religion required a meatless diet, and by denying his requests for such a diet. In this decision, and Illinois federal magistrate judge concluded that defendant did not have qualified immunity and that his actions did not further a legitimate penological interest. The court awarded plaintiff $2980 in damages for violation of his 1st Amendment rights, but found that individual capacity claims under the Illinois Religious Freedom Restoration Act are barred by sovereign immunity.

In Greene v. Shearin, 2011 U.S. Dist. LEXIS 145499 (D MD, Dec. 19, 2011), a Maryland federal district court rejected an inmate's free exercise claim, finding that his belief in "Good Mental Health" is a secular, not a religious, belief and that he had not shown that his desire to be supervised by African-Americans is a tenet of his religion.

In Sims v. Wegman, 2011 U.S. Dist. LEXIS 145700 (ED CA, Dec. 19, 2011), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that as a member of Nation of Islam he should be entitled to change from a Vegetarian Diet to a Kosher Diet.

In Rodriguez v. Hubbard, 2011 U.S. Dist. LEXIS 145701 (ED CA, Dec. 19, 2011), a California federal magistrate judge dismissed an inmate's free exercise and retaliation claims but gave him leave to amend to properly assert claims regarding confiscation of his Native American prayer pipe and other religious artifacts, denial or religious services and counseling and retaliation.

In Drumgo v. Brown, 2011 U.S. Dist. LEXIS 145829 (D DE, Dec. 16, 2011), a Delaware federal district court upheld a prison rule allowing inmates to have only one religious book in their cell, rejecting an inmate's complaint that authorities confiscated a Qur'an and Bible from his cell and returned only the Qur'an. the Bible was held as evidence for the inmate's disciplinary proceeding.

In Buckley v. Alameida, 2011 U.S. Dist. LEXIS 146233 (ED CA, Dec. 20, 2011), a California federal magistrate judge recommended dismissing complaints by a Black Orthodox Jewish prisoner that his kosher food packages were confiscated, but recommended that he be permitted to proceed with his claim that his menorah and Hanukkah candles were confiscated with intent to discriminate against him on the basis of religion.

In Pittman-Bey v. Clay, 2011 U.S. Dist. LEXIS 147350 (SD TX, Dec. 22, 2011), a Texas federal magistrate judge permitted an inmate who is member of the Hanafi school of Sunni Islam to proceed with his claim that his free exercise rights were violated by a prison rule that allowed him to receive an after-sunset Ramadan meal only if he attended Friday Jumah services. His beliefs required that he not attend Jumah services while incarcerated.  However money damage claims against certain defendants were dismissed on 11th Amendment grounds, and claims against certain individual defendants were dismissed.

In Hankins v. Commonwealth of Pennsylvania, 2011 U.S. Dist. LEXIS 147067 (WD PA, Dec. 22, 2011), a Pennsylvania federal district court adopted most of the recommendations of a federal magistrate judge (2011 U.S. Dist. LEXIS 147478, Nov. 30, 2011) and dismissed an inmate's complaint that he was denied consultation with a religious representative and denied religious materials.

In Cayce v. George, 2011 U.S. Dist. LEXIS 147907 (MD TN, Dec. 23, 2011), a Tennessee federal district court dismissed a jail inmate's complaint that while in protective custody he was not able to attend religious services because of a lack of volunteers to provide services.

In Stewart v. Beach, 2011 U.S. Dist. LEXIS 147765 (D KA, Dec. 22, 2011), a Kansas federal district court dismissed on qualified immunity grounds a complaint by a Rastafarian inmate that he was required to cut his dreadlocks in order to transfer prison facilities to be closer to his mother who had been diagnosed with cancer.

In Treesh v. Leha Bobb-Itt, 2011 U.S. Dist. LEXIS 147837 (SD OH, Dec. 21, 2011), an Ohio federal magistrate judge denied a motion for reconsideration made by a Native American inmate in a case in which he complained that his free exercise rights were violated when he was not allowed to wear a feather in his hair on a daily basis. His motion was based on the denial of DNA testing to show he was a Native American, though that was not the basis on which authorities did not permit his wearing of a feather.

No Free Exercise or Title VI Claims Shown In Campus Anti-Israel Activity

In Felber v. Yudof, (ND CA, Dec. 22, 2011), a California federal district court rejected claims by a Jewish student and a recent Jewish graduate of the University of California Berkeley that university officials have permitted "a dangerous anti-Semitic climate" to develop on University of California campuses.  Plaintiffs claim that officials have failed to adopt policies and procedures to protect Jewish students from threats and harassment by two student groups, the Muslim Student Association and Students for Justice in Palestine. In particular, the complaint focuses on harassment by these student groups during the anti-Israel "Apartheid Week" in 2010.  Rejecting plaintiffs' free exercise claim, the court held that even if anti-Semitic acts can be deemed an interference with the free exercise of religion, University officials have no constitutional obligation to prevent private parties from interfering with the constitutional rights of others.  The court also rejected plaintiffs' claims under Title VI of the 1964 Civil Rights Act. While Title VI might obligate the University to regulate the conduct of other students, to succeed plaintiffs would need to show conduct that is, “so severe, pervasive, and objectively offensive that it denies its victims the equal access to education.”  Here much of the conduct was political speech; much of it took place outside the presence of plaintiffs; and plaintiffs have not alleged denials of access to the University's educational services in any meaningful sense. Finally plaintiffs have not alleged that University officials acted with deliberate indifference. In dismissing the Title VI claims, the court gave plaintiffs' the right to file an amended Title VI complaint against the Regents and the individual defendants.

By deciding the case on these grounds, the court largely avoided having to deal with two other difficult legal issues that might be posed: (1) When does anti-Israel activity become anti-Semitism?; and (2) Does the prohibition in Title VI against racial (but not religious) discrimination in access to federally funded educational programs cover anti-Semitic denials? (See prior related posting.)

The University issued a release on the decision, saying in part: "UC Berkeley is committed to maintaining an inclusive and respectful campus environment that is safe and welcoming for everyone, without regard to religion, race, ethnicity or ideology. The university is also committed to enforcing the law and protecting the rights of free expression for every single member of the campus community, and we are pleased that the suit has recognized our efforts in this area."

Protesters In Maldives Want Stricter Islamic Limitations

AP reports that over 3,000 people-- at the call of the opposition Justice Party and other groups-- protested in the capital of the Maldives on Friday, calling on the government to end "anti-Islamic" activities.  Protesters want an end to the sale of alcohol, the closing of brothels operating as massage parlors, destruction of monuments (seen as idols) presented by other countries to the Maldives last month for a South Asian summit (see prior posting), and scrapping of proposed direct flights to Israel. Maldives President Mohammad Nasheed however said he supports the moderate brand of Islam that has traditionally been practiced in the country.  He said: "We can't achieve development by going backwards to the stone age or being ignorant."

Court OK's Proposed Nevada Fetal Personhood Initiative After A Rewrite

In Chen v. Nevada Prolife Coalition, (NV Dist. Ct., Dec. 19, 2011), a Nevada state trial court allowed an advocacy group to move ahead with attempts to obtain enough signatures to place a proposed fetal personhood constitutional amendment on the 2012 ballot. The proposed amendment reads:

The intentional taking of a prenatal person's life shall never be allowed in this State.... [T]he term "prenatal person includes every human being at all stages of biological development before birth.

The court rejected a claim that the proposed amendment is invalid because it embraces more than one subject. However the court did require that the petition language describing the effect of the amendment be rewritten before petitions are circulated.  The court set out the language that must be used in the new description. It reads in part:

All person are endowed by their creator with certain unalienable rights including the right to life. This initiative proposes to add a new section to the Nevada Constitution to protect a prenatal person's right to life.... The initiative would ... prevent all abortions even in the case of rape, incest or serious threats to the woman's health or life.... The initiative will impact some rights Nevada women currently have to utilize some forms of birth control, including the "pill;" and to access certain fertility treatments such as in vitro fertilization. The initiative will affect embryonic stem cell research, which offers potential for treating diseases such as diabetes, Parkinson's disease, heart disease and others.

According to a report from the American Independent, proponents must obtain 72.352 valid signatures by June. Last year, a Nevada state court struck down attempts to circulate petitions for a different version of a personhood amendment (see prior posting) and the state Supreme Court dismissed an appeal as moot (see prior posting).

FLDS Members May Be Evicted If They Refuse To Pay Taxes On Trust Property

While the federal courts are deciding whether Utah courts acted constitutionally in issuing orders to reform the United Effort Plan Trust of the FLDS Church (see prior posting), a Utah state court last week ruled that the court-appointed fiduciary for the trust can evict residents who have not paid property taxes and occupancy fees on homes owned by the Trust which they occupy.  Around 143 of the 176 parcels in the twin towns of Hildale, Utah, and Colorado City, Ariz. have some back taxes due on them. Thursday's Salt Lake Tribune reports that court-appointed fiduciary Bruce Wissan fears that if action is not taken, some of the properties will go up for tax sales within 18 months.  He says that rather than losing the properties, he will allocate them to other individuals who will pay taxes and fees. The tax situation is complicated by the fact that some parcels contain several homes, so that a delinquency by one places the entire parcel in arrears.  Also, residents hesitate to pay the back taxes because if a federal court decision invalidating Utah's reformation of the Trust is upheld, particularly the non-FLDS members who have been allocated homes may lose them when Trust administration is returned to the Church. (See prior related posting.)

Canadian Court Says Botched Ritual Circumcision Was Aggravated Assault

In Regina v. D.J.W., (B.C. Ct. App., Dec. 22, 2011), the British Columbia Court of Appeal held that a father who botched an attempt at home to perform a religious circumcision on his 4-year old son should have been convicted of assault with a weapon and aggravated assault instead of "criminal negligence causing bodily harm".   (See prior posting.) Defendant performed the circumcision after doctors refused on the ground that a general anesthesia would be necessary and could not be justified for a 4-year old. Defendant raised a religious freedom defense, but the court responded:

The religious views of the accused are not impeded by the provisions of the Criminal Code in issue in this case. The accused’s religion did not demand that the circumcision be performed by the accused himself, nor did the trial judge find that religious necessity dictated that the circumcision be performed immediately so that the accused was left with no alternative but to perform the operation himself. Thus, it is not the accused’s religious beliefs that are at issue, but the rights and best interests of D.J. with respect to whether he should have been subjected to an attempted circumcision by his father in the circumstances and conditions under which it was attempted.

Canadian Press reports on the decision.

Junior ROTC Cadets Can Now Wear Religious Head Coverings

The Department of Defense has agreed to change its Army Junior ROTC uniform policy to permit Cadets to request to wear religious head coverings, such as the Sikh turban or Muslim hijab. The policy change comes after a 14-year old high school student in Tennessee was forced to transfer out of her JROTC class because her commanding officers refused to allow her to wear her hijab while marching in the September homecoming parade. A CAIR press release yesterday quotes a letter from the Deputy Assistant Secretary of the Army announcing the new policy.

Suit Seeks Placement Of Winter Solstice Anti-Religion Sign Next To Creche

The Freedom From Religion Foundation yesterday announced the filing of a federal court lawsuit against the city of Warren, Michigan in an attempt to require the city to place an FFRF Winter Solstice sign next to a nativity scene that is already on display in the Warren Civic Center. The sandwich-board sign reads in part: "Religion is but myth and superstition that hardens hearts and enslaves minds."  The full text of the complaint, motion for preliminary injunction and brief in support of the motion in Freedom from Religion Foundation, Inc. v. City of Warren, Michigan, (ED MI, filed 12/22/2011), recounts FFRF's efforts to have its sign displayed.  The mayor of Warren refused FFRF's request to display the sign, saying that it "is clearly anti-religion and meant to counter the religious tone of the Nativity Scene, which could lead to confrontations and a disruption of city hall." The complaint alleges that the Nativity Scene violates the Establishment Clause; and that refusal to display FFRF's sign violates the free speech clause of the 1st Amendment as well as the 14th Amendment's Equal Protection Clause.

Settlement Is Reached In Suit By Nurses Asserting Conscience Rights In Assisting On Abortions

AP reports that a settlement has been reached in Danquah v. University of Medicine and Dentistry of New Jersey, a suit filed last month by a group of nurses who claim that the University of Medicine and Dentistry of New Jersey has demanded that they assist in abortions in violation of their religious objections. (See prior posting.)  Under the settlement which was mediated by U.S. District Judge Jose Linares, 12 nurses in the same-day surgery unit will retain their current positions and, with a limited exception, will not be required to assist in any part of an abortion procedure. If there is a life-threatening emergency and no non-objecting staff members are available, then the nurses will be required to assist, but only until another staff member can be brought in.

Christian College Sues Over Health Care Mandate To Cover Contraceptives and Sterilization

The Becket Fund announced this week the filing of a lawsuit by Colorado Christian University (CCU) challenging on free exercise, free expression and other grounds regulations issued under the Affordable Care Act that require health care plans to cover all FDA-approved contraceptive methods and sterilization procedures. The plans must also cover related education and counseling.  While the regulations contain an exemption for certain religious employers (see prior posting), the exemption is too narrow to cover universities whose purpose is not limited to the inculcation of religious values. The complaint (full text) in Colorado Christian University v. Sebelius, (D CO, filed 12/22/2011), seeks a declaration that enforcement of the regulations against CCU violates the 1st Amendment and the Religious Freedom Restoration Act, and that the regulations were issued in violation of the Administrative Procedure Act. It also seeks an injunction against enforcement of the regulations against religious organizations that object to providing insurance coverage for contraceptives (including  abortifacient contraceptives) and sterilization. A similar lawsuit was filed last month by a Benedictine Catholic University (see prior posting); however CCU is the first interdenominational Christian college to bring such a suit.

Court Lacks Authority To Order Husband To Give Jewish Divorce Document

In Lowy v. Lowy, (NJ App., Dec. 21, 2011), a New Jersey appeals court held that a trial judge lacked authority to order defendant husband to give a get (Jewish divorce document) to his wife where the husband was under no contractual obligation to do so. While the parties had submitted their dispute to a Jewish religious court (Bais Din), that religious arbitration panel did not order the husband to give his wife a get. The court held:

Once the Bais Din decree is eliminated as a source of authority for the judge's August 27, 2010 enforcement order -- as it must be -- the order cannot be sustained because it constitutes impermissible judicial involvement in a matter of religious practice.

Under Jewish religious law, a get can only be issued with the cooperation of the husband, and the wife may not remarry in a traditional Jewish religious ceremony if she has not received a get. [Thanks to Steven H. Sholk for the lead.]

Court Again Rules For Seventh Day Adventist Church In Zoning Dispute

In Reaching Hearts International, Inc. v. Prince George's County, 2011 U.S. Dist. LEXIS 146495 (D MD, Dec. 21, 2011), a Maryland federal district court ordered Prince George's County (MD) Council to reconsider its partial denial of a water and sewer service category change for a church building that a Seventh Day Adventist organization wished to construct.  As reported by the Washington Examiner this week, plaintiffs already won a $3.7 million religious discrimination judgement against the county in 2008 for its actions that prevented the church from obtaining clearance to build. Apparently the refusal was motivated at least in part by the views of one Council member who believed that no more churches were needed in the area. (See prior posting.) In its decision this week, the court said: "The reasons given by the County for its initial denial of RHI's 2010 Application closely mirror the reasons previously given for all of its actions at issue in the 2008 trial which were rejected by the jury's verdict and this Court's order."

2d Circuit: Res Judicata Bars Relitigation of Moorish Officers Dismissal

In Bey v. City of New York, (2d Cir., Dec. 19, 2011), the U.S. 2nd Circuit Court of Appeals dismissed on res judicata grounds a suit by two New York City correctional officers who were members of the Moorish American Religion-- which teaches that Moors are exempt from taxes.  Appellants were dismissed from their Department of Corrections positions for filing false tax documents with the intent to defraud.  The Court concluded that a prior lawsuit which plaintiffs lost was based on the same series of transactions that give rise to the constitutional challenge to plaintiffs' suspension and termination in this case.

Cert. Filed In Idaho Charter School Board Ban On Religious Texts In Classrooms

Alliance Defense Fund announced yesterday that it has filed a petition for certiorari (full text) with the Supreme Court in Napa Classical Academy v. Goesling. In the case, the 9th Circuit upheld the action of the Idaho Public Charter School Commission in barring publicly funded schools from using relgioius texts in the classroom, even for teaching of secular subjects.  The 9th Circuit held that the First Amendment’s speech clause does not give charter school teachers, students, or parents a right to have such texts included as part of the school curriculum. (See prior posting.)

Russian Local Prosecutor Attempting To Ban Sacred Hindu Text As Extremist

CNN reports that in the Russian city of Tomsk, a court has  postponed until Dec. 28 its decision on an attempt by the prosecutor to ban the Bhagavad Gita as an extremist book that sows social discord. The court in August appointed a 3-member academic panel to submit a report to it. The Indian ambassador to Russia has objected to the prosecutor's attack on one of Hinduism's most important texts. The Hindu American Foundation says that prosecutors have taken words from the Gita out of context. Alexander Kadakin, Russia's ambassador to India, said: "It is not the Russian government that started the case. These are some petty people in the far away though very beautiful city of Tomsk who did it. The government ... can only testify and reiterate the love and affection and highest esteem our nation has for Bhagavad Gita."

UPDATE: A Dec. 23 report from Interfax says that the Tomsk prosecutor is not going after the text of the Bhagavad Gita, but instead the Russian-language edition of the Bhagavad Gita As It Is, and especially the accompanying commentary written in 1968 by the founder of the International Society for Krishna Consciousness, A. C. Bhaktivedanta Swami Prabhupada.

Refusal To Discuss Sabbath Accommodation For Correctional Officer Violates Title VII

In Schutte v. Department of Corrections, (CO Pers. Bd., Dec. 19, 2011), a Colorado State Personnel Board administrative law judge held, in an initial decision, that a state correctional facility illegally discriminated against a Messianic Jewish correctional officer by refusing to accommodate his religious need to have Friday nights and Saturdays off from work.  The opinion concluded that the complainant's supervisors violated Title VII of the federal 1964 Civil Rights Act by refusing to engage in an interactive process once complainant raised the scheduling issue. KSUA News reports on the decision.

Quebec Will Allow Jail and Courthouse Guards To Wear Hijab

Canadian Press reported yesterday that Quebec's Public Service Department has reached a settlement with the province's human rights commission that will allow female Muslim correctional officers who guard jails and courthouses to wear a hijab (headscarf). The government will provide the head covering to those officers who request it. The settlement grew out of a discrimination complaint filed in 2007.  The opposition  Parti Quebecois strongly criticized the settlement.

Indian Court Tells Social Networking Sites To Remove Anti-Religious Content

In New Delhi, India yesterday, a court issued an ex parte restraining order requiring 22 social networking websites to remove videos, text and photos with anti-religious or anti-social content that promote hatred or communal disharmony. PTI reports that the defendants include Facebook, Google and Youtube. The order came in a civil suit filed by Mufti Aijaz Arshad Qasmi and amidst reports that India's Telecommunications Minister had asked the websites to screen their content. Apparently the order covers content that was included on a CD filed in the lawsuit by plaintiff.  Defendants are to respond to the court's order by Dec. 24.

UPDATE: Economic Times reports that at the Dec. 24 hearing, the court again ordered removal of anti-religious and anti-social content on 22 social networking websites and directed the companies to file compliance reports by Feb. 6.  Only Yahoo India Pvt Ltd and Microsoft appeared a the hearing, and they said they had not yet received a copy of the complaint or the original court order. Counsel for the complainant assured the court that he would provide them with copies.

National Menorah Lit In D.C. As Hanukkah Begins

Last night marked the beginning of the Jewish holiday of Hanukkah. AP reports on how Washington ushered in the holdiay:

Thousands turned out for a special ceremony marking the first night of Hanukkah. "The President's Own" U.S. Marine Band performed as the National Menorah, situated on the Ellipse near the White House, was lit.

Time traces the transformation of Hanukkah from a minor Jewish holiday to perhaps the most celebrated Jewish holiday in America.

UPDATE: Also yesterday, President Obama sent Hanukkah greetings to all those around the world celebrating the holiday. (Full text of statement.)

Preliminary Injunction Protects Street Preachers At Holiday Festival In Park

In Jankowski v. City of Duluth, (D MN, Dec. 20, 2011), a Minnesota federal district court granted a preliminary injunction to prevent city of Duluth police officers from interfering with activities of two street preachers at the Bentleyville Tour of Lights.  The Tour is a holiday festival held each year on city property, Bayfront Festival Park, and is sponsored by a private non-profit group. The court concluded that Bayfront Festival Park is a traditional public forum, and it remains so when a private group uses it to host an event that is free and open to the public. The court concluded that the city had failed to set forth any interest that is furthered by its enforcing the non-profit sponsor's ban on plaintiffs' 1st Amendment activities. A Dec. 13 magistrate judge's decision in the case had likewise recommended granting a preliminary injunction. An Alliance Defense Fund press release reports on the court's decision. (See prior related posting.)

UN General Assembly Adopts Resolution Against Religious Intolerance, Without Mentioning Defamation of Religion

On Dec. 19, according to a United Nations press release, the U.N General Assembly:

adopted a new text on combating intolerance, negative stereotyping, stigmatization, discrimination, and incitement to violence against persons, based on religion or belief, ... [proposed] on behalf of the Organization of Islamic Cooperation (OIC).  By that text, it strongly deplored all acts of violence against persons on the basis of their religion or belief, as well as all attacks on and in religious places, sites and shrines in violation of international law.

Human Rights First noted yesterday that, unlike past resolutions, this one avoids the concept of "defamation of religion."

U.S. House Resolution Presses Turkey On Religious Liberty Issues

Last week, the U.S. House of Representatives adopted a resolution urging the Secretary of State to pressure Turkey on issues of religious freedom.  House Resolution 306, adopted by voice vote on Dec. 13, is summarized by the Congressional Research Service. The resolution:

Urges the government of Turkey to honor its obligations under international treaties and human rights law and: (1) end all forms of religious discrimination; (2) allow church and lay owners of Christian church properties to organize and administer religious and social activities; and (3) return to their rightful owners all Christian churches, monasteries, schools, hospitals, monuments, relics, and other religious properties, and allow their preservation and reconstruction as necessary.

Yesterday's Armenian Reporter gives more background on the problems faced by Christian communities in Turkey. (See prior related posting.)