Recent Prisoner Free Exercise Cases

In Grayson v. Schuler , (7th Cir., Jan. 13, 2012), the U.S. 7th Circuit Court of Appeals in an opinion by Judge Posner  reversed a district court's grant of summary judgement for defendant in a damage claim by an African Hebrew Israelite inmate who took a Nazirite vow not to cut his hair. He was forced to cut his dreadlocks. The court held that it is impermissible for a prison to allow "Rastafarians to wear long hair and without justification forbid a sincere African Hebrew Israelite of Jerusalem to do so, even if he is more zealous in his religious observances than his religion requires him to be." The court also rejected defendant's claim of qualified immunity since he could not reasonably have thought that an exclusion from grooming requirements only for Rastafarians was constitutional. Interestingly, for illustrative purposes Judge Posner included as part of the opinion a photo of Jamaican musician Bob Marley with dreadlocks of "formidable length and density."

In Burriola v. Nevada Department of Corrections, (9th Cir., Jan. 12, 2012), the U.S. 9th Circuit Court of Appeals held that authorities did not violated an inmate's rights under the free exercise clause, the due process clause or RLUIPA when they confiscated some of his religious magazines.

In Countryman v. Baca, (9th Cir., Jan. 11, 2012), the U.S. 9th Circuit Court of Appeals rejected an inmate's claim that his free exercise and equal protection rights and his rights under RLUIPA were violated when he was denied access to a hardbound book to study the Greek New Testament.

In Cookson v. Commissioner, Maine Department of Corrections, 2012 U.S. Dist. LEXIS 6842 (D ME, Jan. 4, 2012), a Maine federal magistrate judge recommended rejecting a Satanist inmate's request to hold group Satanist rituals, finding that this would create a risk to prison security despite the individual plaintiff's rejection of violence. There is no evidence that others who might join the group similarly reject vengeance and violence. UPDATE: The court adopted the magistrate's recommendations at 2012 U.S. Dist. LEXIS 35053, March 15, 2012).

In Puckett v. Richland County Commissioners, 2012 U.S. Dist. LEXIS 1845 (ND OH, Jan. 6, 2012), an Ohio federal district court held that plaintiff had not alleged enough facts to support his claim that his free exercise rights are violated by a jail's refusal to permit pretrial detainees to participate in religious services.

In Parker v. Trent, 2012 U.S. Dist. LEXIS 3042 (ND WV, Jan. 10, 2012), a West Virginia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 151089, Dec. 21, 2011) and dismissed a Muslim inmate's complaint, finding that prison authorities had not intentionally set improper meal and prayer times for Ramadan. They believed they were accommodating plaintiff's Ramadan requirements. Authorities also had legitimate penological reasons to refuse to allow Muslims to pray together.

In In re Garcia, (CA App., Jan. 11, 2012), a California state appellate court held that prison officials violated the free exercise and RLUIPA rights of a Messianic Jewish inmate when it refused to allow him to participate in an existing kosher meal program. The refusal was based on the Jewish chaplain's statement that the inmate was not a traditional Jew. In part of its opinion, the court concluded that state courts have concurrent jurisdiction with federal courts over RLUIPA claims.

In Ruffin v. Commissioner, 2011 U.S. Dist. LEXIS 151358 (D ME, Jan. 19, 2012), a Maine federal magistrate judge recommended dismissing a complaint by  Muslim inmate who wanted to conduct his one-person Friday religious service in a commons areas, instead of only in the privacy of his room as prison officials permitted.

In a press release issued on Jan. 10, the U.S. Department of Justice announced that it has entered into a consent injunction with the Berkeley County, S.C., Sheriff’s Office as to claims raised in Prison Legal News v. DeWitt that detainees were being denied access to books, magazines, and newspapers and denied the right to practice their religion, in violation of the1st Amendment and RLUIPA. The consent decree provides for detainees to have appropriate access to religious and reading materials.

Correctional Officer Who Could Not Carry Bible Loses Title VII Case

In Franks v. Nebraska, 2012 U.S. Dist. LEXIS 2829 (D NE, Jan. 10, 2012), a Nebraska federal district court rejected a Title VII employment discrimination claims by a correctional officer who was not permitted to carry a pocket-sized Bible while at work in the Omaha Correctional Center. His claim that his employer failed to accommodate his religious beliefs failed because he acceded to the requirement and thereby avoided any adverse employment consequences. The court also rejected plaintiff's claim that he was subjected to disparate treatment because of his religion and his claim of religious-based harassment.

Break-Away Presbyterian Congregation Keeps Title To Its Property

In Heartland Presbytery v. Gashland Presbyterian Church, (MO App., Jan. 10, 2012), a Missouri state appeals court held that the property of a break-away Presbyterian congregation was not held in trust for the Presbyterian Church (USA) or its Heartland Presbytery.  The Gashland Presbyterian Church obtained title to the property in 1948, prior to the adoption in the 1980's by PCUSA of the Property-Trust Clause in its Book of Order.  The court held that, under neutral principles of Missouri law, some expression of intent by Gashland to be governed by the Property-Trust Clause is required before an express trust can be created. (See prior related posting.)

Religious Conservatives Meeting In Texas Back Santorum

At a ranch near Brenham, Texas, today a gathering of 150 leading religious and social conservatives agreed on Rick Santorum as their consensus choice for the Republican presidential nomination. The Dallas Morning News reports that on the third ballot Santorum received 85 of the 114 votes cast. Family Research Council head Tony Perkins, speaking for the group, said: "There was this unanimous agreement to replace Barack Obama. And the consensus that emerged here was that Santorum was the best to do that." Perkins said that in the speeches and discussion, there was little reference to Romney's Mormon beliefs. Rick Perry, in whose home state the meeting was held, failed to even make the second ballot. (See prior related posting.)

Trial Court Upholds Indiana's School Voucher Program

AP reports that in Indiana yesterday, a state trial court upheld the constitutionality of the state's Choice Scholarship Program. In a suit filed last year, 12 plaintiffs alleged that the program violates state constitutional provisions that bar the use of tax funds for religious institutions and which require a general and uniform system of common schools. (See prior posting.) The court held that the state is not directly funding parochial schools. Instead scholarships go to parents who can decide at which schools they will be used. The court also held that the state constitution authorizes educational options outside of the public school system.  The decision is likely to be appealed.

South Carolina School Board Agrees To Consent Decree On Religion In Schools

The ACLU announced Thursday that the Chesterfield County, South Carolina school board has voted to adopt a proposed settlement agreement in suit filed against it last month challenging religious activities in the schools.  The complaint focused particularly on an an evangelical revival assembly held at New Heights Middle School, but also alleged other instances of prayer and proselytizing as part of school events. A posting on the school district's website says that the board approved the proposed consent decree at a special meeting on Thursday by a vote of 6-3, explaining:

Following legal advice that various practices and events in the schools related to religion needed to stop occurring, based on court decisions interpreting the Establishment Clause of the U.S. Constitution, the Board majority approved the consent decree and order.  The consent decree and order recognizes that students and teachers do have rights under the Free Exercise and Free Speech provisions of the First Amendment to pray at school under certain conditions and to participate in other religious activities.

The Board was advised that defending the lawsuit would result in a court-imposed order after many thousands of dollars had been spent on legal costs.  The Board wishes to make it clear that it intends to abide by the constitutional principle of separation of church and state, while also recognizing and allowing the permissible exercise of religion by its staff and students and all citizens.

Malaysian Court Rules On Jurisdiction To Decide Validity of Conversion

In Malaysia yesterday, an appeals court held that civil courts have jurisdiction to hear a case brought by a woman who is challenging the validity of her conversion to Islam as a child.  Bernama reports that the decision under appeal (originally handed down by the Penang High Court) had held that only Syariah courts have jurisdiction. Plaintiff Siti Hasnah Vangarama Abdullah claims that she was born into a Hindu family that placed her in an orphanage at age 5. She says that when she was 7, a Muslim Welfare Organization official took her to a Kadi court and ordered her to recite an affirmation of Muslim faith and a rejection of Hinduism. She says she did not understand the meaning of what she was doing, and in any event had no choice in the matter. Defendants on the other hand claim that Siti converted along with her parents and siblings when Siti was only 1 year old. Siti is seeking a court declaration that she was wrongfully required to convert, and is asking the court to order the National Registration Department to change her Muslim name back to her original Hindu name. She also wants the word "Islam" omitted from her identity card.

Defendants In Amish Beard-Cutting Assaults Plead Not Guilty; 5 Held In Jail

The Cleveland Plain Dealer reports that on Wednesday, 12 members of an Amish sect in Ohio who have been indicted on charges of conspiring to violate the federal hate crimes statute and the federal witness tampering law all pleaded not guilty. (See prior related posting.) The charges grew out of assaults that included forcible beard-cuttings carried out against members of a rival Amish faction. Seven of the defendants who have been detained since their arrests in November were ordered to remain in jail. Five other of the defendants who were not in detention were ordered to have no contact with the assault victims. Samuel Mullet Sr., the leader of the group to which defendants belong, was among those jailed.  The court concluded that his release with an electronic monitor was not feasible because Mullet has no electricity in his home.

UPDATE: In a Jan. 18 filing with the court, Samuel Mullet's attorney has said Mullet would install electricity in his home  to permit his pre-trial release with electronic monitoring. (Daily Mail).

Al-Azhar Proposed Bill of Rights Gains Widespread Support By Egyptian Political Parties

Daily News Egypt reports that on Wednesday, the Muslim Brotherhood’s Freedom and Justice Party, the Salafi Al-Nour Party, Al Wafd, and many liberal parties all signed onto a bill of rights drafted by the prestigious Muslim religious institution, al-Azhar. Bikya Masr says that the document took 3 months to draft. It was the collaborative work of Islamic scholars, Christian scholars and secular leaders. The document was also endorsed by a number of candidates for Egypt's presidency. The document, according to al-Azhar head Sheikh Ahmed Al-Tayeb, "preserves freedoms of worship, opinion, scientific research and art and creative expression." In a nod to conservative Islamists, the document also provides that the arts must not "contradict religious sentiments and established social mores."  Hassan El-Shafei, El-Tayeb’s consultant, said: "We do not want Egypt to be an Islamists state, but we also do not want Egypt to be a non Islamic state; we want Egypt as a modern democratic state that is based on Islamic values."

Amish Men Jailed After Refusing To Pay Fines For Not Displaying Orange Safety Triangles

In Graves County, Kentucky yesterday, ten Amish men, all members of the Swartzentruber Amish community, were sentenced to jail terms after they refused to pay fines that had been imposed on them for refusing to display orange reflective triangles on their horse-drawn buggies. AP reports that their sentences ranged from 3 to 13 days for fines ranging from $153 to $627. Displaying the bright orange color conflicts with the Amish men's religious beliefs.  In jail the men will wear specially dyed jumpsuits instead of the stand issue orange ones, and the county jail has agreed that mug shots of them will not be taken. The Kentucky legislature is considering a change in the law that would allow the Amish to use gray reflective tape instead of orange triangles. An appeal is pending in the Kentucky Supreme Court in a similar case. (See prior posting.)

NJ Administrative Law Judge Finds Violation For Refusal To Rent Space For Civil Union Ceremony

AP reported yesterday that a New Jersey Division of Civil Rights Administrative Law Judge has issued a proposed ruling concluding that a religious group, the Methodist-affiliated Ocean Grove Camp Meeting Association, violated the state's public accommodation anti-discrimination laws when in 2007 it refused to rent out its boardwalk pavilion to a lesbian couple to use for their civil union ceremony. The Association claimed that its freedom of religious expression would be infringed if it was forced to permit same-sex civil union ceremonies on its property.  The administrative law judge, however, concluded that the pavilion was a public space which until 2007 advertised itself as a wedding venue without any mention of religious conditions. The state Division on Civil Rights now has 45 days to decide whether to adopt, reject or modify the administrative law judge's ruling. The administrative law judge's conclusions are similar to those reached in a 2008 opinion finding probable cause to proceed in the case. (See prior posting.) The Association now apparently no longer rents out its pavilion to anyone.

New Survey Released On Mormons' Views Of Their Place In American Life

The Pew Forum on Religion and Public Life yesterday released a new survey on what Mormons think about their place in American life. The report titled Mormons in America: Certain in Their Beliefs, Uncertain of Their Place in Society comes as a Mormon is among the leading contenders for the Republican nomination for President of the United States.  According to the new report's Executive Summary:

Many Mormons feel they are misunderstood, discriminated against and not accepted by other Americans as part of mainstream society. Yet, at the same time, a majority of Mormons think that acceptance of Mormonism is rising. Overwhelmingly, they are satisfied with their lives and content with their communities. And most say they think the country is ready to elect a Mormon president.

97% of the Mormons surveyed describe Mormonism as a Christian relgion-- a view disputed by some evangelical Christians. (See prior posting.)

Court Holds Diocese Reorganization Not Subject To Property Transfer Tax

According to a January 9 press release from the Catholic Archdiocese of San Francisco, a California Superior Court judge has finalized a tentative opinion issued in November holding that the archdiocese is not liable for some $20 million in transfer taxes that had been assessed against it in connection with a reorganization  that transferred some 232 archdiocese properties to two new Catholic non-profit holding companies. Apparently the reorganization is designed to protect the properties from any future clergy abuse judgments. (See prior posting.)  According to California Catholic Daily, the court found that the transaction was merely a change in corporate form, not a transfer.

8th Circuit Dismisses Tony Alamo Ministry's Challenge To Seizure of Children

In Tony Alamo Christian Ministries v. Selig, (8th Cir., Jan. 11, 2012), the 8th Circuit dismissed on Younger v. Harris abstention grounds a challenge by Tony Alamo Christian Ministries (TACM) to the 2008 removal by state welfare authorities of minor children from the religious group's compound in Arkansas in order to protect them from abuse. (See prior posting.) TACM claimed that its 1st and 4th Amendment rights, and those of its members, were violated by the seizure of the children and the conditions imposed on parents for their return. Various state court proceedings addressing parents' constitutional claims were ongoing when TAMC filed its federal court challenge. The abstention doctrine applies to TACM because its claims stem from injuries alleged by the children's parents.The court rejected TACM's argument that the state's investigation and seizure of the children were carried out in bad faith. In relying on abstention to dismiss the case, the 8th Circuit avoided deciding whether the district court had correctly denied standing to TAMC. Arkansas News Bureau reports on  yesterday's decision.

High School Prayer Mural Violates Establishment Clause

In Ahlquist v. City of Cranston, (D RI, Jan. 11, 2012), a Rhode Island federal district court held that a high school student has standing to challenge on Establishment Clause grounds a prayer mural that hangs in her school's auditorium.  The mural contains the text of a School Prayer that was routinely recited by students before the practice was invalidated by the U.S. Supreme Court's school prayer decision in 1962. The mural, and another containing the school creed, were presented to the school by the Class of 1963. The court granted plaintiff a permanent injunction requiring immediate removal of the mural.  In finding that it violates the Establishment Clause, the court said in part:

The purposes of the Prayer when drafted, and the Prayer Mural, when installed, were clearly religious in nature.... No amount of debate can make the School Prayer anything other than a prayer, and a Christian one at that.

The Cranston Patch reports on the decision, as does the Boston Globe. (See prior related posting.)

UPDATE: The Humanist Examiner reports that the teenage plaintiff in the case has been bombarded with taunts and threats of physical violence, many through social media.

Brazilian Official Wants To Regulate Underwear and Necklines On Wedding Dresses

In the Brazilian town of Vila Velha, apparently the latest superstition among brides is that their marriage will last longer if they wear no panties under their wedding dress during the wedding ceremony.  The London Mail reported Tuesday that Vila Velha council member Ozias Zizi wants to protect clergy from embarrassment and protect the dignity of churches by barring the practice, as well as by regulating the lower limit of necklines on wedding dresses. Zizi admitted his proposed law would be difficult to enforce.

In Canadian Province, Catholic Schools Hit By Complaints Under Parental Rights Law

The Edmonton Journal reported yesterday on the unanticipated consequences of a law enacted in 2009 by the Legislative Assembly in the Canadian province of Alberta. Bill 44, the Human Rights, Citizenship and Multiculturalism Amendment Act, added sexual orientation to the province's anti-discrimination law. It also includes a parental rights provision-- advocated by the Catholic Church among others-- requiring a school to provide notice to parents whenever a class or program will be dealing primarily and explicitly with religion, sexuality or sexual orientation, so the parent can request his or her child be excused from class or not participate. (See prior posting.) Now however in the town of Morinville where all public schools are operated by the Greater St. Albert Catholic schools, it is the Catholic school board that is the subject of parental complaints about the ability to opt out. At least 5 non-Catholic parents have filed complaints with the Alberta Human Rights Commission claiming that their non-Catholic children were forced to receive religious instruction, without the ability to opt out. They say that in the Morinville schools, Catholic doctrine permeates all aspects of the school day. Non-Catholic parents in Morinville (which is no longer a homogeneous Catholic village) are attempting to get a secular school alternative for their children.

Virginia Court Awards Property of Break-Away Churches To Episcopal Diocese

In 2010, the Virginia Supreme Court held that Virginia's 1867 "Division Statute" does not apply to nine congregations that broke away from The Episcopal Church and affiliated with the Convocation of Anglicans in North America. This holding revived the declaratory judgment actions that had been filed to determine ownership under real property and contract law of the property of the break-away congregations. (See prior posting.) On remand, a Virginia state trial court held a 22-day trial and on Tuesday issued a 113-page opinion in the case. In In re Multi-Circuit Church Property Litigation, (VA Cir. Ct., Jan. 10, 2012), the trial court ruled that all the property of the break-away congregations is to be conveyed to The Episcopal Church's Diocese of Virginia. It held that:

the CANA Congregations, in that they are not Episcopal Congregations, do not possess either contractual or proprietary interests in the property of the seven Episcopal Churches at issue. They are, therefore, enjoined from further use or control of these properties and must promptly relinquish them to the Diocese.

Finally the court held that the directors of the Falls Church Endowment Fund are to be elected by the vestry of the continuing Falls Church congregation-- the congregation that remained affiliated with The Episcopal Church.

Episcopal Cafe reports on the reactions of the parties to the court's decision. [Thanks to both John Chilton and George A. Sommerville for the lead.]

Analysis: Some Thoughts On Church Autonomy After Today's Hosanna-Tabor Decision

Today the Supreme Court in the Hosanna-Tabor case applied the ministerial exception doctrine to require dismissal of a suit charging a church with a violation of the the Americans With Disabilities Act in firing a "called" teacher. (See prior posting.)

Chief Justice Roberts' opinion for the court made it clear that the ministerial exception doctrine is required by the Constitution.  He says that both the free exercise and the establishment clause bar government from interfering with the decision of a religious group to fire one of its ministers. Many free exercise cases relate to an individual's freedom to practice his or her religion.  This case, the Court makes clear, is instead about the institutional autonomy of the church.  Chief Justice Roberts early on focuses on the Magna Carta's protection of the Church of England, and emphasizes that:

the Religion Clauses ensured that the new Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices.

Chief Justice Roberts explains that:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

However, Chief Justice Roberts' characterization of the case belies this rationale.  The Lutheran Church's faith or mission does not call for dismissal of a minister who has a health-related disability. Chief Justice Roberts fails to characterize this case as one in which the state interferes with a Church's decision made on theological grounds to hire or fire a minister.  Indeed, he specifically holds that this is irrelevant:

The purpose of the [ministerial] exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,” ... —is the church’s alone.

Should the First Amendment really permit churches to stand above the law on matters having no doctrinal component to them?

Justice Alito's concurrence focuses on a much more persuasive basis for the Court's decision, one based on the church's concern about doctrinal matters:

The Roman Catholic Church’s insistence on clerical celibacy may be much better known than the Lutheran Church’s doctrine of internal dispute resolution, but popular familiarity with a religious doctrine cannot be the determinative factor.

What matters in the present case is that Hosanna-Tabor believes that the religious function that respondent performed made it essential that she abide by the doctrine of internal dispute resolution; and the civil courts are in no position to second-guess that assessment.

If the Religion Clauses broadly preclude the government from imposing a minister on a church, presumably they likewise preclude the government from preventing a church from hiring particular clergy. Does this mean that the federal government may not deport an alien who is in the United States illegally when that individual has been chosen to be the minister of a church? Does the principle preclude the state from arresting a minister who is charged with criminal activity because doing so would deprive a church of its chosen religious leader?  Where the Constitution was most concerned about autonomy-- Congress' autonomy from interference by the Executive Branch-- the Constitution did create at least limited immunity from arrest.

And if church autonomy precludes governmental interference in selection of those who will personify its beliefs, does it also preclude governmental interference in the design of church buildings that personify the Church's image to its adherents and to outsiders?  If so, how does that limit zoning laws? Indeed Justice Alito's explanation of church autonomy in his concurring opinion suggests a principle broader than just selection of clergy:

The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith.

Finally, by holding that the ministerial exception is constitutionally required, the Court seems to call for its application at least in every kind of litigation that deals with hiring or firing of a minister. So while the court says it is not deciding the issue, it seems difficult to envision a court being able to adjudicate a breach of contract claim by a fired minister against his or her church without the court also interfering in the church's choice of its leaders.

Supreme Court Upholds Ministerial Exception To Bar Teacher's ADA Claim

The Supreme Court this morning handed down its decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, (Sup. Ct., Jan. 11, 2012), concluding unanimously that "there is a ministerial exception grounded in the Religion Clauses of the First Amendment," and that it applies to bar a suit claiming that a "called" teacher at a Lutheran elementary and middle school was fired in retaliation for threatening to bring a lawsuit under the Americans With Disabilities Act. In finding that the exception applied to plaintiff, the court emphasized that she was given the title "minister of religion":

In light of ...  the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we concludethat Perich was a minister covered by the ministerial exception

Chief Justice Roberts writing for the Court, and reversing the decision of the Sixth Circuit (see prior posting), summarized the Court's holding:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Concurring opinions were filed by Justice Thomas, and by Justice Alito joined by Justice Kagan.  Later postings on Religion Clause will offer more analysis of today's opinions.

10th Circuit Says Oklahoma Anti-Sharia Amendment Violates Establishment Clause

In Awad v. Ziriax, (10th Cir., Jan. 10, 2012), the 10th Circuit Court of Appeals affirmed a federal district court's  preliminary injunction (see prior posting) preventing the Oklahoma state election board from certifying voter approval of an anti-Sharia constitutional amendment. The so-called "Save Our State" Amendment provides that Oklahoma courts may not look to the legal precepts of other nations or cultures, and specifically cannot consider international law or Sharia Law.  The 10th Circuit held that plaintiff, a Muslim, has standing to challenge the amendment, saying:

We conclude that Mr. Awad’s allegation—that the proposed state amendment expressly condemns his religion and exposes him and other Muslims in Oklahoma to disfavored treatment—suffices to establish the kind of direct injury-in-fact necessary to create Establishment Clause standing.

In finding that the amendment violates the Establishment Clause the court applied "strict scrutiny" because the amendment discriminates among religions.  The court concluded:

Given the lack of evidence of any concrete problem, any harm Appellants seek to remedy with the proposed amendment is speculative at best and cannot support a compelling interest. “To sacrifice First Amendment protections for so speculative a gain is not warranted . . . .”

The Los Angeles Times reports on the decision.

Kentucky Governor Rejects Hospital Merger That Posed Establishment Clause Issues

Lexology reports that last week Kentucky Gov. Steve Beshear announced that he will not approve a proposed merger of several hospitals that includes the merger of the University of Louisville Medical Center with several other hospitals that are currently subject to the Ethical and Religious Directives (ERD) for Catholic Health Care Services.  His decision follows a report (full text) by Kentucky Attorney General Jack Conway recommending against approval, in part because of the complexity of the Establishment Clause issues involved. While many aspects of the merger raised questions, one has been the influence of Catholic religious guidelines on the University hospital. Here is a portion of the Attorney General's comment on a provision in the agreement that University hospital would no longer perform sterilizations (including tubal ligations) and would not dispense contraceptives:

Opponents of the proposed merger argue that approval of the transaction will have the impermissible effect of advancing religion by authorizing and requiring a public, state-owned hospital to be governed by the Catholic Church's religious directives.... The vagueness surrounding the ERD issue ... may likely set the stage for a constitutional challenge of the consolidation.... [T]he Attorney General is not yet in a position to opine as to whether the proposed consolidation satisfies the United States and Kentucky Constitutions....In any event, such litigation would undoubtedly be lengthy and would require the use of valuable state resources to defend.

Settlement of Lawsuit Will Allow DC Special Elections To Avoid Religious Holiday Conflicts

The Washington Post reports that last week a settlement was reached in a lawsuit that Rabbi Shmuel Herzfeld brought last year against the District of Columbia over the scheduling of special elections in conflict with religious holidays.  The city charter currently requires that any special election be scheduled the first Tuesday that is 114 days after a vacancy is declared. This resulted in a 2011 special election for a Council member and two school board members to be scheduled on the 8th day of Passover. (See prior posting.) Under the settlement, D.C. Mayor Vincent Gray will submit a charter amendment to D.C. Council and D.C. voters that will give the Board of Elections and Ethics discretion to avoid this sort of conflict by allowing the election to be scheduled between 100 and 130 days after a vacancy is declared.

India's Election Commission Proposes Action Against Cabinet Minister Over Election Promise To Muslims

In India, as previously reported, a December 2009 Report of the National Commission for Religious and Linguistic Minorities recommended that Parliament change its present scheduled caste set-asides and add a 10% quota in educational institutions and government jobs for Muslims, along with 5% for other minorities. In December 2011, the government said it will create a 4.5% sub-quota for economically and socially disadvantaged non-Hindu minorities. (See prior posting.) Yesterday PTI reported that Salman Khurshid, Cabinet Minister of the Ministry of Law and Justice, speaking at an election rally in Uttar Pradesh where his wife is running for a seat in the state's legislative assembly promised that the Congress Party-- his and his wife's party-- would create a 9% sub-quota for minorities and this would help Muslims. This led India's Election Commission yesterday to issue orders to Khurshid (full text) and his wife to show cause why action should not be taken against them for violating India's Model Code of Conduct that provides: "No party or candidate shall indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic."

UPDATE: The Chandigarh, India Tribune (1/11) reports that the Election Commission has issued an order asking the Ministry of Personnel and Training to hold off on implementing the announced 4.5% sub-quota until the election process in the states of Punjab, Uttar Pradesh, Uttarakhand, Goa and Manipur is over.

New York Regents Give Religious Schools Conscience Exemption To Teaching Tolerance

Last year, New York enacted the Dignity for All Students Act, effective July 1, 2012. (See prior posting.) In addition to prohibiting bullying, the law (Educ. Law Sec. 801-a) requires schools to include in their K-12 curriculum instruction in tolerance and respect for others of  different  races,  weights, national origins, ethnic  groups,  religions,  religious  practices,  mental  or  physical   abilities, sexual orientations, genders, and sexes. According to Yeshiva World, on Monday the New York Board of Regents voted to exempt yeshivas and parochial schools from this requirement to the extent that the school has a religious or moral objection to the requirement. Assemblyman Steven Cymbrowitz said that parents of students in such schools "may now feel secure that ... their children will not be subjected to lessons that are inconsistent with their religious doctrines."

Supreme Court Hears Oral Arguments On FCC Indecency Rules

The U.S. Supreme Court today heard oral arguments in FCC v. Fox Television Stations, Inc. (Transcript of oral arguments.) The case, which is of interest to many in the religious community, involves a constitutional challenge to the Federal Communications Commission's current policy barring indecency on radio and television broadcasts during prime time. The San Antonio Express-News and National Law Journal reports on the arguments.

Supreme Court Limits Prisoners' Bivens Actions

The U.S. Supreme Court today decided a case that may impact the right of prisoners in some cases to sue for infringement of their 1st Amendment right to the free exercise of religion.  In Minneci v. Pollard, (Sup. Ct., Jan. 12, 2012), the Court held, 8-1, that:

where ... a federal prisoner seeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the Eighth Amendment, and where that conduct is of a kind that typically falls within the scope of traditional state tort law ..., the prisoner must seek a remedy under state tort law. We cannot imply a Bivens remedy in such a case.

SCOTUSblog reports on the decision.

West Virginia County's Funding of Jesus Fest Creates Controversy

The Harrison County West Virginia Commission is receiving conflicting advice on the constitutionality of its $2000 grant to Jesus Fest, a two-day festival in downtown Clarksburg. The festival has received the grant for the last 5 years. According to the Charleston Daily Mail last month, the funding comes from video lottery and table game revenue given to the county by the state which is used to fund festivals and community events. In a Dec. 22 letter (full text), the ACLU of West Virginia says that the funding violates the Establishment Clause as well as provisions of the West Virginia constitution that bar favoring any sect or denomination.  However a Jan. 5 letter (full text) from The Rutherford Fund argues that the funding is constitutional because the the county's program neutrally funds all types of community events without regard to their viewpoint.  The letter goes on to argue that the funding does not benefit religion, but instead covers costs of general festival expenses such as children's movies and a second stage. (Rutherford Institute press release.) The ACLU asked for a response by Jan. 6, but the county prosecuting attorney says he needs more time to study the issue. (WDTV News).

UPDATE: WDTV News reported on Jan. 19 that Harrison County Prosecuting Attorney Joe Shaffer ruled that the county's process for funding fairs and festivals such as the Jesus Festival is neutral and does not endorse religion or deny funding on the basis of religion.

8th Circuit En Banc Hears Arguments On Funeral Picketing Cse

Yesterday the U.S. 8th Circuit Court of Appeals en banc heard oral arguments in Phelps-Roper v. City of Manchester, Missouri. An audio recording of the full arguments is available online. In an October 5, 2011 opinion (full text), a 3-judge panel of the 8th Circuit held that a Manchester, Missouri ordinance that regulates protests near funerals is unconstitutional. The panel upheld the nominal damages and injunction granted to members of the Westboro Baptist Church who challenged the ordinance. Town and Country-Manchester Patch reports on yesterday's oral arguments.

Australia Modifies School Chaplaincy Program To Also Fund Secular Welfare Workers

In 2007, the Australian government began offering schools up to $20,000 per year to fund chaplaincy services. (See prior posting.) Around 2700 schools have received funding under the program. However,  the Australian Psychological Society argued that the program is dangerous to children's mental health because many children are seeking out chaplains rather than psychologists to deal with mental health problems. (See prior posting.)  According to today's Canberra Times, the government has now changed its guidelines so that schools can choose to use the money to employ secular welfare workers instead of chaplains-- an alternative that was previously available only if no chaplain could be found. So far of the 2512 schools that have reapplied for funding, only 8% of  have chosen this secular option, 89% are sticking with chaplains, and 3% are still deciding. Meanwhile a constitutional challenge to the entire chaplaincy program is still pending in the courts.

Vigilante Morality Police Attempt To Enforce Islamic Law In Rural Egypt

Bikya Masr reported this week that in rural towns in Egypt, vigilante gangs of conservative Salafi Muslim men have formed themselves into a Committee for the Promotion of Virtue and Prevention of Vice to enforce Islamic law.  They have been harassing shop owners and women, telling stores they should stop selling "indecent" clothing and telling barbers to stop shaving Muslim men. However when the self-styled morality police rushed into a beauty salon in the town of Benha, the women patrons struck back beating the men with their own canes and kicking them out into the street. Sheiks from Cairo’s Al Azhar mosque and university have denied the legitimacy of the vigilante groups, and the al Nour Party denied that it financed the morality police groups.

Egypt Charges Wealthy Coptic Politician With Blasphemy

The Los Angeles Times reported yesterday that in Egypt, Naguib Sawiris, chairman of Orascom Telecom and a major shareholder in the cell phone service provider Mobinil, has been charged by prosecutors with blasphemy and insulting Islam. He is to appear in court for a hearing on Jan. 14.  Sawiris, a Coptic Christian and a billionaire, heads the secular Free Egyptians Party which is expected to end up in third place with about 10% of the seats in the new parliament.  The charges against Sawiris stem from his posting a photo depicting a bearded Mickey Mouse and a veiled Minnie Mouse on his Twitter account last June. A group of Islamist lawyers filed a civil suit against him immediately after the cartoon was published. The photo at issue was reproduced yesterday by Arutz Sheva which reports that in the tweet publishing the cartoon, Sawiris joked that these Disney characters would be forced to dress modestly if Islamists took control of Egypt.

Police Officer Fired After Religious Refusal To Get Medical Help For Wife Sues

A former Lee's Corner, Missouri police officer, Caleb Horner, last week filed a federal lawsuit claiming that the police department's refusal to allow him to return to work amounted to religious discrimination.  According to yesterday's Kansas City Star, Horner and his common-law wife, Misty, believed in a “healing process that comes from God” rather than traditional medical treatment. In Dec. 2006, Misty gave birth at home to a stillborn infant.  31 days later Misty died, never asking for medical care.  During that time, Caleb refused pleas of friends and family to get medical help for Misty, saying that Misty wanted to rely on prayer.  Immediately after Misty's death, Caleb and others who shared his religious beliefs spent 14 hours trying to raise her from the dead by prayer. The police department fired Caleb for failing to promptly call the medical examiner when Misty died. Caleb's lawsuit says that his co-workers turned on him during his wife's illness. He asks for damages of at least $25,000.

Sincerity of Religious Beliefs May Be Explored In Moorish Americans' Challenge To Firings

In Bey v. City of New York, 2012 U.S. Dist. LEXIS 1743 (SD NY, Jan. 4, 2012), a New York federal district court ruled on 12 in limine motions in a case in which Moorish American plaintiffs are challenging their termination of employment by the New York Department of Corrections for filing false tax documents. Plaintiffs claim that "members of the Moorish American faith [cannot] be taxed without their voluntary consent."  Among the rulings on motions, the court held that "evidence of plaintiffs religious beliefs may be introduced. The objective truth or not of those beliefs themselves is not to be put in issue; defendants may, however, inquire into whether the beliefs are sincerely held and religious in nature." (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Andrew M. Koppelman, Justice Stevens, Religious Enthusiast, (Northwestern University Law Review, Forthcoming).
• Mason A. Binkley, A Loss for Words: 'Religion' in the First Amendment, (University of Detroit Mercy Law Review, Vol. 88, No. 2, p. 185, 2010).
• Alexa Døving, Sidra Shami, and Tore Lindholm, Religious Commitment and Social Integration: Are there Significant Links? A Pilot Study of Muslims in the Oslo Area with a Family Background from Pakistan, (University of Oslo Faculty of Law Research Paper No. 2012-01, 2012).
• John D. Inazu, Justice Ginsburg and Religious Liberty, (Hastings Law Journal, Forthcoming).

From SmartCILP:

• Shaheen Sardar Ali, Teaching and Learning Islamic law In a Globalized World: Some Reflections and Perspectives, 61 Journal of Legal Education 206-230 (2011).
• Bryna Bogoch and Yifat Holzman-Gazit, Clashing Over Conversion: "Who is a Jew" and Media Representations of an Israeli Supreme Court Decision, [Abstract], 24 International Journal for Semiotics Law 423-445 (2011).
• Christopher McCrudden, Multiculturalism, Freedom of Religion, Equality, and the British Constitution: The JFS Case Considered, 9 I.Con: International Journal of Constitutional Law 200-229 (2011).
• Iain McLean and Scot Peterson, Entrenching the Establishment and Free Exercise of Religion in the Written U.K. Constitution, [Abstract], 9 I.Con: International Journal of Constitutional Law 230-250 (2011).
• Symposium. Whom Should a Catholic Law School Honor?, 49 Journal of Catholic Legal Studies 223-292 (2010).

Recent Prisoner Free Exercise Cases

In Lizotte v. LeBlanc, (5th Cir., Jan 5, 2012), the U.S. 5th Circuit Court of Appeals dismissed on statute of limitations grounds a religious discrimination claim by a Muslim prison who claimed that he was not allowed out of his working cell block to attend Friday Muslim prayer services, even though Christian inmates with the same custody status were allowed to gather for prayer on Sundays.

In Venega v. Swarthout, 2012 U.S. Dist. LEXIS 779 (ED CA, Jan. 3, 2012), a California federal magistrate judge dismissed a habeas corpus petition that alleged in part that the inmate petitioner's free exercise rights were violated when the California Board of Parole Hearings ordered him to attend religiously-based Alcoholics Anonymous programs in order to be found suitable for parole.

In Bradford v. Yates, 2012 U.S. Dist. LEXIS 626 (ED CA, Jan. 3, 2012), a California federal magistrate judge dismissed, with leave to amend, an inmate's religious discrimination and free exercise claims, saying that the complaint contained only vague allegations regarding the confiscation or the denial of religious materials and of name calling and harassment in general.

In Davitashvili v. Schomig, 2012 U.S. Dist. LEXIS 1069 (D AZ, Jan. 4, 2012), an Arizona federal district court dismissed a Jewish inmaet's free exercise and RLUIPA complaints of problems with the kosher diet he was receiving. The court held that plaintiff had not shown a substantial burden on his religious exercise. While he received meals that did not comply with kosher requirements on some occasions during a 2-month period, these stemmed merely from periodic service-delivery related problems.

Boko Haram Muslim Sect Kills Christians In Northern Nigeria

In Nigeria, the radical Muslim Boko Haram sect has killed 44 people in the last few days after it promised to kill Christians living in the predominately Muslim north of the country. According to AP, 8 were killed Friday night in Yola, the capital of Adamawa state, when gunmen attacked the Apostolic Church. Earlier Friday in the town of Mubi, 20 people who had gathered for a meeting of the Christian Igbo ethnic group were killed. On Thursday night, 8 were killed in an attack on a church in Gombe state. Attacks have also hit a beauty salon and banks.  Gov. Murtala Nyako has ordered a 24-hour curfew throughout Adamawa state.  Pastor Ayo Oritsejafor, president of the Christian Association of Nigeria, said today that Christians are taking steps to defend themselves against these attacks.

Suit Challenges Interfaith Portion of Jewish Cemetery

AP reported yesterday on a case originally filed nearly a year ago involving a dispute over who can be buried in a Jewish cemetery. The case is coming up for trial next month. At issue is an interfaith section of a cemetery in Colchester, Connecticut belonging to a Conservative synagogue, Congregation Ahavath Achim.  The first, and only, person buried there so far is Juliet Steer, a Jamaican-born African American woman who was interested in the Jewish faith and liked the peacefulness of the cemetery.  In 2009, the synagogue board agreed to set aside a portion of their cemetery for interfaith couples, their non-Jewish children and other non-Jews. However synagogue member Maria Balaban has now sued claiming that creating a non-Jewish section of the cemetery violates a 1999 merger agreement between Ahavath Achim and the Colchester Jewish Aid Congregation.  The synagogue's attorney, in a court filing last month, argues that Balaban originally approved creation of the non-Jewish section and is suing now only because Steer is African-American and Balaban does not want her buried near her family's plots. After that charge of racism was made, Balaban filed an amended complaint adding a claim for damages for emotional distress, saying that she has been made to feel unwanted by members of the congregation.

82 Religious Groups Apply To Hungarian Parliament For Recognition Under New Law

As previously reported, Hungary's Parliament last month passed a new Law on Churches that requires all but 14 traditional religious faiths to apply to Parliament for registration. AP reports that as of Friday, 82 churches, congregations and religious groups have applied for official recognition. Each group will need to be approved by a two-thirds vote of Parliament in order to be able to retain special tax, labor and other privileges.  Countering claims that the new law infringes religious rights (see prior posting), a Justice Ministry spokesman last month said: "Neither communities nor individuals are under any constraints in the practice of their religion in Hungary. The real objective of this law is to regularize the system of state subsidies and tax benefits, which was being abused."

Evangelical Leaders To Meet To Seek Single Alternative To Romney

In an article titled For Evangelicals Wary of Romney, Time Runs Short, the New York Times yesterday reported that dozens of conservative Christian leaders and political strategists plan to meet in Texas next Friday and Saturday to see if they can come together on a single candidate for the Republican presidential nomination who is more acceptable to evangelicals than Mitt Romney. With evangelicals' votes dispersed among several candidates, Romney is strengthened.

Refusing Pagan Books, School System Is Reviewing Policy On Distribution of Religious Materials

In December, parent Ginger Strivelli complained to the principal at North Windy Ridge intermediate school in Buncombe County, North Carolina because her son brought home one of the Gideon Bibles that the school had made available in an office for any student who wanted to pick one up.  In response, the principal said that any other group could similarly leave material for students. However when Strivelli showed up on Wednesday with Pagan spell books, the school refused to make them available to students, saying that the school district is reviewing its policy because of the complaints it has generated. According to the Asheville Citizen-Times, a statement from the school system said no school will accept a donation of materials "that could be viewed as advocating a particular religion or belief" while the school district policy review is under way. [Thanks to Blog from the Capital for the lead.]

Rabbi Sentenced In Money Laundering Case

As previously reported, in June 2010 Rabbi Eliahu Ben Haim, former head of a prominent synagogue in Deal, New Jersey, plead guilty in a New Jersey federal district court to charges of using religious charities he controlled to launder money. Ben Haim was one of five rabbis from the Syrian Jewish community and 39 others arrested last year in a high profile federal investigation of public corruption and money laundering.  On Wednesday, according to the Asbury Park Press and a press release from the U.S. Attorney's Office, the federal court handed down its sentence for Ben Haim-- 5 years in prison followed by 3 years of supervised release. He has already forfeited over $700,000 in funds to the government. Another defendant, Akiva Aryeh Weiss, who plead guilty to operating an unlicensed money transmitting business from a location in Brooklyn, was sentenced to five years probation with the special condition that he reside in a mental health facility.

Arizona Day of Prayer Proclamations Challenged In State Court Lawsuit

Last month, an Arizona federal district court dismissed on standing grounds an Establishment Clause challenge to Arizona Governor Janice Brewer's past and future declarations of an official Day of Prayer. (See prior posting.)  Refusing to give up, now the Freedom from Religion Foundation has filed a challenge to the Day of Prayer proclamations in an Arizona state court invoking the state constitution. (FFRF press release). The complaint (full text) in Freedom From Religion Foundation, Inc. v. Brewer, (AZ Super. Ct. filed 1/4/2012), alleges that in making the proclamations, the governor violated two state constitutional provisions-- Art. II, Sec. 12 which bars the use of public funds for religious worship, and Art. XX, Sec. 1 that "no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship, or lack of the same." Yesterday's Arizona Republic reported on the lawsuit.

Bankruptcy Judge Imposes Sanctions In Case Involving Anti-Catholic Statements In Legal Memo

As previously reported, last month Minnesota U.S. Bankruptcy Judge Nancy Dreher issued show-cause orders to attorney Rebekah Nett and her client Naomi Isaacson (who is also a member of the bar) threatening to impose sanctions on them for bigoted anti-Catholic statements contained in a legal memorandum they filed with the court.  The memo was written by Isaacson and filed by Nett.  AP reports that yesterday Isaacson failed to appear for the show cause hearing, and the court ordered her jailed for contempt. She had previously been held in contempt for failing to turn over documents in the case, and the arrest order appears to relate to that since it runs until the documents are produced. (The St. Paul Pioneer Press reports that the arrest order was issued on Tuesday, before the Wednesday hearing, and was for failing to turn over business records.) Isaacson and Nett were each ordered to pay $5000 in penalties for the abusive legal memo, take ethics classes, and the case file was forwarded to the chief judge of the district for possible disbarment from practice before federal courts in the state. The court did not jail Nett who did appear at the hearing and told the court that the offensive document was an "emotional outburst" written by Isaacson and that Nett "wasn't trying to condone that" when she filed it on behalf of the bankrupt company headed by Isaacson.  Nett argued that contempt sanctions are designed to prevent a repeat of the conduct, and that this kind of case was unlikely to ever arise again. The bankrupt company is a subsidiary of the controversial Samanta Roy Institute of Science and Technology.

Court Blocks New York Housing Development Favoring Hasidic Residents Over Neighboring Blacks and Hispanics

A New York state trial court ruled yesterday in a housing discrimination case that pits the Hasidic Jewish community in the New York City neighborhood of Williamsburg against black and Hispanic residents of the neighboring Bedford-Stuyvesant neighborhood. According to a New York Civil Liberties Union press release, the court's issuance of a preliminary injunction against proceeding with the current plans for an affordable-housing project on city-owned land in the Broadway Triangle area may have implications for all future affordable housing projects in the city. In Broadway Triangle Community Coalition v. Bloomberg, (NY Sup. Ct., Jan. 4, 2012), the court held that the housing plans would perpetuate racial discrimination and disproportionately impact minority racial groups in violation of the Federal Fair Housing Act. Current plans involved construction of low rise buildings containing numerous large apartments, instead of taller buildings containing smaller apartments.  The current plans would favor the white Hasidic Yiddish-speaking community that generally has large families, and for whom taller buildings are unattractive because of their religious need to avoid using elevators on the Sabbath. Black and Hispanic residents of the area more often need smaller apartments. Reuters reports on the decision. (See prior related posting.)

Anti-Copyright Group Recognized As A Religion In Sweden

In Sweden, the "Missionary Church of Kopimism" has, on the third try, obtained approval to register Kopimism (pronounced "copy me-ism") as one of the country's 22 recognized religions. NPR reported on the announcement yesterday. The church's central belief is in the sharing and copying of information. It is opposed to copyright laws, which it sees as limiting lives and freedom. According to Torrent Freak, file-sharing philosophy student Isak Gerson founded the Church in 2010 as an attempt to avoid persecution for file sharing. (See prior related posting.)

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.