Sweden's New Home Schooling Limits Being Tested By Chabad Rabbi

In Sweden, a change in law took effect January 1 that limits mores narrowly the situations in which parents can home-school their children. It is now permitted only in "extraordinary" circumstances. The new law aims to make education across the country more uniform. (See prior posting.)  Chabad Lubavitch World HQ / News reported yesterday that one of the first tests of the new law involves Rabbi Alexander and Leah Namdar, Chabad representatives to Sweden.  Four of the Namdar children are studying in an online international school. Authorities in Gothenburg have formally notified the Namdars that they will be fined the equivalent of $2400 (US) per week if they do not enroll their children in a Swedish school by Feb. 1.  The Namdars' supporters say the Swedish law was aimed at immigrant children who were illiterate. The Namdar children, by contrast, are being educated along with 500 other students in the online school, and this is supplemented by private tutoring. They have a full morning schedule of Judaic studies including Hebrew, while their afternoons are devoted to English, Swedish, mathematics, geography, science, music, art, and gymnastics. Apparently Swedish schools have significant bullying problems, and the Namdars are concerned that as the only Orthodox Jews in Gothenburg, the children would stand out in a Swedish school and become targets for anti-Semitism. The Namdars say that their right to give their children a Jewish education, which the public schools cannot accommodate, is at stake.

White House Press Secretary Responds To Bishops' Criticism of HHS Policy

At yesterday' White House press briefing (full text), Press Secretary Jay Carney engaged in a lengthy exchange with reporters on the Catholic Bishops' strong opposition to new rules under the Affordable Care Act requiring most health insurance policies to fully cover contraceptive services. Narrow exceptions for religious employers would not cover most Catholic schools and hospitals. (See prior posting). Here is a substantial part of the exchange in the press briefing:

Q: ... It was a pretty extraordinary situation on Sunday in parishes all across the country, individual priests were reading letters from their bishops in that particular parish that were pretty much denouncing the Obama administration about these provisions dealing with contraception, Catholic hospitals and whatnot in connection with the Affordable Care Act.  I guess my question would be, how does the administration justify having the federal government institute a law that basically forces people to violate their religious beliefs?

MR. CARNEY:  Well, that misrepresents actually ... the ... decision about the implementation of the Affordable Care Act....  The decision was made... after very careful consideration, and the administration believes that this proposal strikes the appropriate balance between respecting religious beliefs and increasing access to important preventive services.  We will continue to work closely with religious groups during this transitional period to discuss their concerns.

It’s important -- to go to your point -- that this approach does not signal any change at all in the administration’s policy on conscience protections.  The President and this administration have previously expressed strong support for existing conscience protections, including those relating to health care providers.  That support continues.

I also would just note that our robust partnerships with the Catholic Church and other communities of faith will continue.  The administration has provided over $2 billion to Catholic organizations over the past three years in addition to numerous nonfinancial partnerships that promote healthy communities and serve the common good.

Q: The bishops are saying just the opposite.  They’re saying that basically if somebody is working in a Catholic hospital and they don’t cover contraception for their employees, that they’re in violation of federal law.  So I don’t understand how you’re saying that there are still conscience protections.  They would violate the law, wouldn’t they?

MR. CARNEY:  Well, this does not direct an individual to do anything, first of all.  The new guidelines require most private health plans to cover preventive services, including contraception, for women without charging a copay, coinsurance or deductible.

The guidelines were recommended by the nonpartisan, independent Institute of Medicine.  The administration also released a proposed regulation that allows nonprofit, religious employers that offer insurance to their employees the choice of whether or not to cover contraception services.

After reviewing comments from the public, the administration announced that the final rule on preventive health services will ensure that women with health insurance coverage will have access to the full range of recommended preventive services, including all FDA-approved forms of contraception.

And I would just note that we will work with religious groups during a transitional period to discuss their concerns.  But this decision was made after careful consideration by Secretary Sebelius, and we believe that the proposal strikes the appropriate balance between religious beliefs on the one hand and the need to increase access to important preventive services for women.

 Q    ...  [A] Democrat who’s Catholic, E.J. Dionne, wrote in The Washington Post yesterday that the President ... “utterly botched this policy.”  And he said he, “threw his progressive Catholic allies under the bus.” ....

MR. CARNEY:  ... Ed, all you’re pointing out is that there are people who disagree with the decision.  We understand that not everyone agrees with it.  All I can tell you is it was made after very careful consideration based on the need to balance those two issues and that the necessity to provide access to preventive services for women was an important consideration.

Q    What about the constitutional right to freedom of religion?...

MR. CARNEY:  I don’t believe there are any constitutional rights issues here, but I would refer you to others to discuss that.  ... I understand that there’s controversy ... and we will continue to work with religious groups to discuss their concerns.  But on the other side of this was the important need to provide access to women to the preventive services that they require....

Q    The bishop of Phoenix said Catholics shouldn’t comply with this law.  Will there be any consequences for not --

MR. CARNEY:  I’m the wrong guy to ask.

Forest Service Renews Use Permit For Ski Resort Jesus Statue

The U.S. Forest Service has agreed to renew a controversial special use permit in a ski area in Montana.  As previously reported, in October the U.S. Forest Service withdrew an earlier decision and instead sought public comment on reissuing a special use permit to the Knights of Columbus for a statue of Jesus that has since 1955 been located on land in the Flathead National Forest. Between Oct. 19 and Dec. 8, the Forest Service received 95,000 comments. In a press release issued yesterday, the Forest Service said in part:

The permit is reauthorized for ten years and is for the display of a statue of Jesus Christ on a 25 foot by 25 foot parcel of land near the top of Chair Two at Whitefish Mountain Resort.

[Flathead National Forest Supervisor, Chip] Weber says he is reauthorizing the permit because “I understand the statue has been a long-standing object in the community since 1955, and I recognize that the statue is important to the community for its historical heritage based on its association with the early development of the ski area on Big Mountain.” The statue’s historic value and eligibility for listing on the National Register of Historic Places is in part directly linked to the current physical location of the statue.

KBZK News reports on these developments in an article that carries photos of the statue. All of the Project Documents are also available online. The Washington Post reports that the decision means that Rep. Denny Rehberg will withdraw his bill that would have authorized a land swap so that the land on which the statue sat would have been privately owned. The Post also points out that the statue was originally put up by Knights of Columbus members who were inspired by similar statues in European mountains that many saw in World War II.

Unofficial Sharia Court In India Orders Expulsion of Christian Priests

In India's only Muslim-majority state, Jammu & Kashmir, an unofficial sharia court (which was not created by the government) on Jan.19 issued a fatwa ordering the expulsion of three Christian priests. It also urged the government to take over management of missionary schools, introduce Islamic prayer and Islamic studies classes. In particular, the court demanded that a prayer written by an Urdu poet be recited at morning assemblies in all Christian missionary schools. The Asia Times and Hindustan Times report on developments

The court's decree came after one of the priests "confessed" to having converted 15 Muslim boys to Christianity. Last October, footage appeared on the Internet showing Pastor Chander Mani Khanna baptizing Kashmiri Muslim youth, and a reaction included calls for killing Khanna. Later an inflammatory article quoted one of the boys who converted as saying that Khanna used a girl to entice him to drink alcohol and eat "swine meat." Conversion is legal in Jammu & Kashmir. However Khanna was arrested, and then released on bail, charged under Sections 153A of the Ranbir Penal Code that bars "promoting enmity between different groups ... and doing acts prejudicial to maintenance of harmony," as well as under Section 295A that prohibits "deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs". Meanwhile, separatist leader Syed Ali Geelani criticized the court's decree, saying: "Kashmiris cannot ignore the contributions of Christian missionary schools towards the educational system in the Valley. Unfortunately, Muslims have not been able to build an educational institution like those by the Christian missionary schools despite all available resources."

Secular-Religious Tensions In Tunisia Explored

The New York Times in an article posted yesterday explores the struggle in post-revolutionary Tunisia between secular and religious forces. One symbol of the tensions is the trial, now postponed until April, of a television director for broadcasting the French animated movie "Persepolis", a film about a girl's childhood in revolutionary Iran. The Times reports:

Nearly everyone here seems to agree that “Persepolis” was broadcast Oct. 7 on Nessma TV as a provocation of some sort.... [M]any in Tunisia, both pious and less so, were taken aback by the brief scene in which God was personified — speaking in Tunisian slang no less. A week later, a crowd of Salafis ... attacked the house of Nabil Karoui, the station’s director, and he was soon charged with libeling religion and broadcasting information that could "harm public order or good morals."

CNN Analyzes Likely Evangelical Vote In Florida

Today is the Republican presidential primary in Florida. Last week CNN analyzed the likely evangelical vote in Florida:

There are signs that Florida’s evangelical voters may be more forgiving of Romney’s past social liberalism than their Iowa and South Carolina brethren – and more willing to support a Mormon candidate..... As a percentage of GOP voters, there are fewer evangelicals in Florida compared to South Carolina and Iowa, where Rick Santorum won the presidential caucuses.... And compared to those other early primary states, Florida is much more religiously diverse.... Still, evangelical Christians claim a bigger share of the Florida Republican vote than any other religious tradition. There also are signs they may be more tolerant of a Mormon candidate than born-again Christians in the Bible Belt and Midwest.

Bankruptcy Court Sells Off Religious Community's Llama Herd At Fire Sale Price

AP reports that an Iowa federal bankruptcy judge on Monday took the unusual step of ordering a "fire sale" of a herd of llamas that came under court control two weeks ago after a self-proclaimed priest, Ryan Patrick Scott, filed for bankruptcy. Scott led a small religious community in Independence, Iowa that raised the llamas. The llamas were sold for $7500 to Steve and Sandy Auld who already raise llamas and were caring for Scott's animals under federal supervision since they were taken over by the court. Scott had argued that the animals belong to his non-profit corporation, not to him personally. The Aulds will also be paid $100 per day for the time they cared for the animals before the sale.

Catholic Churches Around Nation Read Letters Attacking HHS Health Insurance Requirement

CBS News reports that last Sunday Catholic Churches around the country read similar letters from their local bishops condemning the Obama administration's new rules requiring contraception coverage by most health plans, with exemptions that are too narrow to include most Catholic schools and hospitals. (See prior posting.) A typical letter quoted in full by the CBS report read in part:

The U.S. Department of Health and Human Services announced last week that almost all employers, including Catholic employers, will be forced to offer their employees’ health coverage that includes sterilization, abortion-inducing drugs, and contraception..... In so ruling, the Obama Administration has cast aside the First Amendment to the Constitution of the United States, denying to Catholics our Nation’s first and most fundamental freedom, that of religious liberty.... [W]e Catholics will be compelled to either violate our consciences, or to drop health coverage for our employees (and suffer the penalties for doing so)..... We cannot—we will not—comply with this unjust law. People of faith cannot be made second class citizens.

Syrian Uprising Becoming Shiite-Sunni Conflict

Yesterday's Christian Science Monitor reports that as the fighting goes on in Syria, the conflict is moving from a popular uprising to a confrontation between Sunnis and Shiites, explaining:

The regime’s reliance on Alawite militiamen, known as the Shabiha, to help suppress the 10-month uprising is mirrored by elements of the armed rebel forces rallying around their Sunni identity through religious and sectarian motifs and language. The minority Alawite sect draws upon some Shiite traditions and is considered heretical by conservative Sunnis.

Shiite Iran and Hezbollah support the Alawites.

Recent Articles and Books of Interest

From SSRN:

• Micah Schwartzman, What If Religion is Not Special?, (January 25, 2012).
• Peter T. Leeson and Christopher J. Coyne, Sassywood, (January 23, 2012).
• Paul Horwitz, Law, Religion, and Kissing Your Sister, (January 22, 2012).
• Máiréad Enright, Girl Interrupted: Citizenship and the Irish Hijab Debate, (Social and Legal Studies, Vol. 20, p. 463, 2011).

From SmartCILP:

• John M. Breen and Lee J. Strang, The Road Not Taken: Catholic Legal Education At the Middle of the Twentieth Century, 51 American Journal of Legal History 553-637 (2011).
• Michael A. Helfand, Fighting for the Debtor's Soul: Regulating Religious Commercial Conduct, 19 George Mason Law Review 157-196 (2011).

Recent Books:

• Cullen Murphy, God's Jury: The Inquisition and the Making of the Modern World, (Houghton Mifflin Harcourt, Jan. 2012), reviewed by the New York Times.
• Sadakat Kadri, Heaven on Earth: A Journey Through Shari‘a Law, (Bodley Head, Jan. 2012), reviewed by OnIslam.net.

Retired General With Anti-Muslim Record Scheduled To Speak At West Point Prayer Breakfast

American Muslim yesterday reported on objections that have been raised to the invitation extended by the Chaplain's Office at the U.S. Military Academy at West Point to retired Lt. Gen. William "Jerry" Boykin to speak at the Academy's  Feb. 8 National Prayer Breakfast. Boykin has a long record of anti-Muslim statements. Both the Military Religious Freedom Foundation and VoteVets have written officials urging that the invitation be retracted. According to Thursday's Washington Post, a West Point spokesperson has reacted to the criticism, saying: "The National Prayer Breakfast Service will be pluralistic with Christians, Jewish, and Muslim cadets participating. We are comfortable and confident that what retired Lt. Gen. Boykin will share about prayer, soldier care and selfless service, will be in keeping with the broad range of ideas normally considered by our cadets." God and Country blog also has a report on the controversy.

Recent Prisoner Free Exercise Cases

In Watkins v. Donnelly, 2012 U.S. Dist. LEXIS 6118 (WD OK, Jan. 19, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 151825, Dec. 19, 2011) and dismissed on qualified immunity grounds an inmate's complaint that he was denied a religious diet for 3 meals in one day.

In Walker v. California, 2012 U.S. Dist. LEXIS 6806 (ED CA, Jan. 19, 2012), a California federal magistrate judge recommended dismissing an inmate's complaint that he was denied parole for failure to attend faith-based AA or NA programs.

In Williams v. Texas Department of Criminal Justice Correctional Institutions Division, 2012 U.S. Dist. LEXIS 8018 (SD TX, Jan. 24, 2012), a Texas federal district court permitted Muslim inmates to proceed with most of their statutory and constitutional religious liberty claims challenging prison officials' interrupting of a Friday Jumah service for a special head count and strip search.  The court pointed out that there is a documented history of discrimination against Muslim inmates by the Texas correctional system as evidenced by a prior consent decree ordering officials to permit Muslim worship services. The court concluded that defendants did not show that allowing the Jumah service to conclude would have jeopardized the effective functioning of the prison.

In Hersey v. Lanigan, 2012 U.S. Dist. LEXIS 8138 (D NJ, Jan. 23, 2012), a New Jersey federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that his request for observance of a Messianic Passover Seder was denied and instead he was provided a Rabbinic Jewish Passover Seder which did not include partaking of a roasted leg of lamb (but only included a lamb shank bone).

In Brown v. Medill, 2012 Kan. App. Unpub. LEXIS 35 (KS App., Jan. 20, 2012), a Kansas state appellate court permitted a Rastafarian inmate who was placed in segregation for refusing to cut his dreadlocks to proceed with his claim for damages for infringement of his free exercise rights and for malicious prosecution (the administrative proceeding that led to his being placed in segregation).  The state's rescission of its grooming policy mooted his claims for equitable relief.

In Wilkins v. Walker, 2012 U.S. Dist. LEXIS 9307 (SD IL, Jan. 26,2012), an Illinois federal district court permitted a former inmate who is a member of the African Hebrew Israelite faith to proceed with damage claims for violations of the free exercise, establishment and equal protection clauses that allegedly occurred when officials refused to hire an AHI chaplain or furnish plaintiff AHI material. State law claims, federal RLUIPA claims, and a religious diet claim were all dismissed.

In Cole v. Danberg, 2012 U.S. Dist. LEXIS 9123 (D DE, Jan. 24, 2012), a Delaware federal district court  denied a temporary restraining order against a prison policy that requires Muslim inmates to get rid of their colored kufis and, in the future, wear only white kufis that can be purchased at the prison commissary.

South Dakota Supreme Court Refuses To Order Church Dissolution Because of Religious Issues Involved

Wipf v. Hutterville Hutterian Bretheren, Inc., (SD Sup. Ct., Jan. 25, 2012) is the South Dakota Supreme Court's second installment in a factional dispute in a South Dakota Hutterite colony, and one of the first cases to cite the U.S. Supreme Court's recent Hosanna-Tabor decision.  After a 1992 schism in the North American Schmiedeleut Hutterian Church, two competing factions vied for governing control of the local colony which was organized as a non-profit corporation under South Dakota law.  In its first decision (see prior posting), the state supreme court, affirming the trial court, held that the governance question depends on resolving a dispute over membership in and expulsion from the "true" Hutterite church by the "true" church elders, and the First Amendment shields such issues from scrutiny by civil courts. Just before that supreme court decision was handed down, the state circuit court judge in the case held that the Hutterville colony dispute should be dealt with by dissolving the colony, selling off its assets and distributing the proceeds to its members.

Now the South Dakota Supreme Court has held that state courts also lack jurisdiction to order dissolution in this case:

When Hutterville made following the Hutterian religion a condition of corporate membership and weaved religious doctrine throughout its corporate documents, it limited a secular court’s ability to adjudicate any corporate disputes. We cannot uphold the circuit court’s order, findings, and conclusions without also endorsing its decision on the identity of corporate leaders and members. “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.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC et al., ___ U.S. ___, ___, ___ S. Ct. ___, ___, ___ L. Ed. 2d ___ (2012). We conclude that the underlying religious controversies over church leadership so pervade the dissolution of the religious corporation that the dissolution is beyond a secular court’s jurisdiction.

EEOC Sues Arkansas Cooperative For Refusing Jehovah's Witness One Day Off

The EEOC announced Thursday that it has filed suit against the Arkansas-based Ozarks Electric Cooperative Corporation for refusing to allow a  call center customer service representative who was a Jehovah’s Witness to take one day off to attend a religious convention. The company not only refused her request but ultimately fired her over it, according to the EEOC's complaint.

6th Circuit: Christian Counseling Student May Go To Trial Over Required Counseling of Gay Client

In Ward v. Polite, (6th Cir., Jan. 27, 2012), the U.S. 6th Circuit Court of Appeals reversed a Michigan trial court's grant of summary judgment in favor of Eastern Michigan University (see prior posting) and held that a former graduate student's free-speech and free-exercise claims should go to trial. At issue was whether counseling student Julea Ward, who was enrolled in a practicum course, could because of her Christian religious beliefs refuse to counsel a gay client or at least have her faculty supervisor refer the client to another counselor if same-sex relationship issues arose. The University took disciplinary action against Ward under its rules that prohibit counseling students from discriminating on the basis of sexual orientation and require them to affirm a client’s values during counseling sessions. The 6th Circuit, held, however:

The key problem with the university’s position is not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice. It is that the school does not have a no-referral policy for practicum students and adheres to an ethics code that permits values-based referrals in general. When the facts are construed in Ward’s favor, as they must be at this stage of the case, a reasonable jury could conclude that Ward’s professors ejected her from the counseling program because of hostility toward her speech and faith, not due to a policy against referrals.....

The court explained:

Although educators may “limit[]” or “grade[] speech in the classroom in the name of learning,” and although they may control their own speech and curriculum, the First Amendment does not permit educators to invoke curriculum “as a pretext for punishing [a] student for her . . . religion.”... Even in the context of a secular university, religious speech is still speech, and discriminating against the religious views of a student is not a legitimate end of a public school.

The court emphasized that the ultimate outcome of the case will depend on how a jury evaluates conflicting claims:

a jury might credit the university’s claim that ... practicum students were subject to a general ban on referrals, making it difficult for Ward to demonstrate that she was expelled on pretextual grounds as opposed to the ground that she refused to adhere to a general and reasonable curricular requirement.

The Detroit Free Press reports on the decision.

Today Is International Holocaust Commemeration Day

Today is the United Nations'-declared annual International Day of Commemoration in Memory of the Victims of the Holocaust. Haaretz reports on plans in countries across Europe for marking the day. The January 27 date was chosen because it is the anniversary of the liberation in 1945 of the Auschwitz-Birkenau death camp by Soviet forces. The United Nations has sponsored a series of Holocaust Remembrance events this month, with an emphasis on this year's theme-- "Children and the Holocaust."

State Trial Court Upholds School Voucher Program

A trial court in Arizona's Maricopa County yesterday rejected state constitutional challenges to the state's "empowerment scholarship" program that makes school vouchers available to students with special needs so they can attend private or parochial schools.  According to the Arizona Daily Star, the court rejected claims that the program violates the state constitutional prohibition on appropriating public money in aid of any private or sectarian school (AZ Const., Art. 9, Sec. 10), and the provision in Art. 2, Sec. 12 of the state constitution that bars the appropriation of public money for religious instruction. The court held that there are substantive differences in the operation of this program and the ones struck down by the Arizona Supreme Court in 2009. (See prior posting.)

Pennsylvania House Declares 2012 As Year of the Bible

On Tuesday, the Pennsylvania House of Representatives adopted House Resolution 535 by a unanimous vote of 193-0.  The Resolution (full text) provides in part:

That the House of Representatives declare 2012 as the "Year of the Bible" in Pennsylvania in recognition of both the formative influence of the Bible on our Commonwealth and nation and our national need to study and apply the teachings of the holy scriptures.

The Resolution begins with a number of "Whereas" clauses, such as one declaring that "the Bible, the word of God, has made a unique contribution in shaping the United States as a distinctive and blessed nation and people." The resolution was introduced as "noncontroversial" under House Rule 35. This permitted the resolution to be voted on within 2 days of being introduced and without first going to committee. The Examiner reports on passage of the resolution.

Mosque Loses Challenge To Zoning Denial

In Islamic Center of North Fulton, Inc. v. City of Alpharetta, Georgia, (ND GA, Jan. 25, 2012), a Georgia federal district court dismissed RLUIPA and federal constitutional challenges to Alpharetta's refusal to give zoning approval to the Islamic Center's replacement of its present worship structure with 2 buildings-- a mosque and a smaller community hall.  The court held:

Simply because a religious organization’s facility is too small does not give the organization “free reign to construct on its lot a building of whatever size it chooses, regardless of the limitations imposed by the zoning ordinances.” ... The mere fact that a church, mosque or synagogue has outgrown its current facilities does not mean that it is substantially burdened under RLUIPA.

Rejecting the mosque's RLUIPA nondiscrimination claim, the court concluded that plaintiff had failed to identify similarly situated comparators.  The court also rejected the claim under RLUIPA that special use and conditional use permit requirements amount to unreasonable limits on religious structures. WSBTV News reports on the decision.

Jewish Group Wins Connecticut Zoning Appeal

In Chabad Chevra, LLC v. City of Hartford, (CT Super. Ct., Dec. 15, 2011), a Connecticut trial court reversed a cease-and-desist order that had been issued by the Hartford (CT) zoning enforcement officer. The Zoning Board of Appeals had affirmed the order that prevented a Jewish group from using as a religious facility a building it had purchased near the University of Hartford campus. The court found that the property had been used by it previous owners, a Baptist group, for offices, residential facilities and religious services.  The court concluded that "the only apparent distinction between the activities of the prior owner and Chabad Chevra is their religion, Christianity and Judaism." Hartford Business yesterday, pointing out anti-Semitic overtones in the original denial, says that the city has decided not to appeal.

State Department Posts Discussion of Role of Religion In U.S. Foreign Policy

Since 2010, the U.S. State Department has produced a series of online videos labeled Conversations with America. The videos feature  live interviews with the leaders of nongovernmental organizations interacting with State Department’s leadership. The latest installment, which appeared earlier this week, is on the Role of Religion in U.S. Foreign Policy.  It features Ambassador-at-Large for International Religious Freedom, Suzan Johnson Cook and Institute for Global Engagement president Chris Seiple in a conversation moderated by Deputy Assistant Secretary for Public Affairs Cheryl Benton. Both the video and a transcript of it are available online.

IRS Launches New Online Search Tool To Locate Non-Profits

Lexology reports that earlier this week the Internal Revenue Service launched a new online search tool to help members of the public locate information about tax-exempt organization. Exempt Organization Select Check allows users to locate organizations that are eligible to receive tax-deductible charitable contributions; organizations that have had their tax-exempt status automatically revoked because they have not filed Form 990 returns or notices annually for three years; and organizations that have filed a Form 990-N annual electronic notice (e-Postcard).

4th Circuit Dismisses RFRA Suit By "Enemy Combatant" Jose Padilla

In Lebron v. Rumsfeld, (4th Cir., Jan. 23, 2012), the U.S. 4th Circuit Court of Appeals rejected claims for a declaratory judgment, injunction and nominal damages brought by Jose Padilla, a U.S. citizen who was convicted on terrorism related charges, including providing material support to Al Qaeda. Padilla's lawsuit challenged his previous military detention as an "enemy combatant." One of Padilla's claims was brought under the Religious Freedom Restoration Act. He alleged that RFRA authorizes him to sue officials in their individual capacities for damages for burdening his free exercise of religion when they held him in military custody.  The court rejected that claim, saying:

Courts have long been reluctant to interpret statutes in ways that allow litigants to interfere with the mission of our nation’s military.... [W]e have no indication that Congress even considered the prospect of RFRA actions brought by enemy combatants with anything like the care that it has customarily devoted to matters of such surpassing sensitivity. The foregoing discussion underscores what we believe are considerable obstacles to applying RFRA in this context. But we need not go so far as to announce such a proposition in its most absolute terms.... At the very least, the defendants transgressed no clearly established law in this area, and to hold them personally liable in the absence of clear notice that such a prospect was even possible would run counter to the reasons that ... [qualified] immunity exists.

Reuters reports on the decision.

Utah High Court Says Objections To Religion At Voir Dire Are Procedurally Barred

In Taylor v. State of Utah, (UT Sup. Ct., Jan. 24, 2012), the Utah Supreme Court held that two claims alleging improper use of religion in voir dire during the penalty phase of a murder trial were procedurally barred from being raised because the objections could have been raised in a prior proceeding. Defendant Von Lester Taylor who was sentenced to death claimed that one juror should have been excused for cause because of his belief in the doctrine of blood atonement.  He also claimed that the prosecution wrongly used its peremptory strikes to reject jurors who were not members of the Church of Jesus Christ of Latter Day Saints. AP reports on the decision.

Added Saturday Evening Nevada Caucus Will Accommodate Sabbath Observing Jews

Nevada's Republican Party Caucuses to choose delegates to the presidential nominating convention are scheduled for Saturday, Feb. 4. AP reported this week that Clark County (Las Vegas area) officials have added a special 7:00 p.m. evening caucus to accommodate Jewish voters who observe the Sabbath. The decision came after billionaire casino owner, Sheldon Adelson, who is active in Jewish causes, complained about the Sabbath conflict.  Adelson and his wife Miriam, majority owners of the Las Vegas Sands Corp., have contributed $10 million to Winning Our Future, a super-PAC that supports Newt Gingrich.  (Bloomberg News). The special evening caucus will be held at the Adelson Educational Campus, a Jewish school founded by the Adelsons. A similar Saturday conflict occurred in 2008, but instead of holding evening caucuses the Nevada Democratic Party placed caucus sites near religious neighborhoods and synagogues so people could walk, and precinct captains were educated to write down information on behalf of observant Jews instead of asking them to sign-in and write themselves. The Republicans apparently also attempted to educate precinct captains on the issue when they became aware of it in 2008. (See prior posting).

EEOC Releases 2011 Enforcement and Litigation Statistics

The EEOC yesterday released its Enforcement and Litigation Statistics for 2011. A record number of religious discrimination claims were filed-- 4,151 (4.2% of all employment discrimination claims filed for the year). 4,608 religious discrimination claims were resolved in some fashion during the year. In 2,737 of those, the EEOC found no reasonable cause to believe that discrimination had occurred.  1,012 claims were closed for various administrative reasons. [Thanks to Blog from the Capital for the lead.]

Romney Tax Returns Raise Questions About Tithing Rules

Kai Petainen writing in Forbes says that Mitt Romney's recently released tax returns raise interesting technical questions about the Mormon Church's tithing rules. These include: is the 10% obligation based on adjusted gross income or taxable income, and can a failure to meet the 10% threshold in one year be made up by contributing more than 10% in the following year? Romney's returns show that for 2010-11 combined, he contributed 9.7% of adjusted gross income, but 12.8% of taxable income.

Cert. Filed In Classroom Banners Display Controversy

The Thomas More Law Center announced yesterday that it has filed a petition for certiorari (full text) with the U.S. Supreme Court in Johnson v. Poway Unified School District, (cert. filed. 1/19/2012).  In the case, the 9th Circuit rejected claims by a high school calculus teacher that his California school district violated his free speech rights, as well as the Establishment Clause and Equal Protection clause, when it required him to remove large banners he had posted in his classroom that carried historic and patriotic slogans, all mentioning God or the Creator. (See prior posting.)

House Passes 2 Bills On Religious Additions To War Memorials

AP reports that the U.S. House of Representatives yesterday passed, and sent to the Senate, two bills authorizing religious symbols on war memorials.  HR 290 permits inclusion of religious symbols on military memorials established or acquired by the United States, or memorials in which the American Battle Monuments Commission was involved. U-T San Diego points out that this is an attempt to save the much-litigated Mt. Soledad Cross. (See prior posting.) The second bill passed by the House yesterday,  HR 2070 requires installation at the Washington, D.C. World War II Memorial of a plaque containing Franklin Roosevelt's D-Day morning prayer.

Jay Leno Joke Using Golden Temple Photo Spurs Diplomatic Complaint, Lawsuit

Politico reports that a Jan. 19 late night skit by TV comedian Jay Leno has angered the Sikh community. Joking about the homes of the Republican presidential candidates, Leno showed photos of Newt Gingrich’s estate in Virginia and Ron Paul’s ranch house in Texas. He then referred to Mitt Romney's summer home but instead showed a photo of the sacred Golden Temple in Punjab, India. According to NDTV, the Indian government yesterday complained to US Assistant Secretary of State for South and Central Asia about the Leno skit.  At a press briefing on Monday (full text), before any formal contact from the Indian government, a State Department spokesperson in response to a question emphasized U.S. respect for Sikhs, but said that Leno's remarks are constitutionally protected. Meanwhile yesterday TMZ reports that a California man, Dr. Randeep Dhillon, has filed a libel suit against Leno, claiming that he falsely portrayed the Sikh religion's holiest place as a vacation resort owned by a non-Sikh.

NYPD Training Included Film Alleging Current Covert Jihad

Today's New York Times reports in a front page story that the 72-minute film, The Third Jihad, was shown on continuous loop to New York City police officers during training sign-in, and the training medical and administrative orientation process. The film, produced by the Clarion Fund, was shown for a period between 3 months and one year to at least 1,489 police officers. The film claims that there is a covert third Jihad taking place throughout the West today. In the film, a doctored photo shows an Islamic flag flying over the White House.

Washington State Likely To Approve Same-Sex Marriage

AP reported  yesterday that there are now enough votes in the Washington state legislature to pass SB 6239, a bill that legalizes same-sex marriage. The crucial 25th vote in the state Senate will come from state senator Mary Margaret Haugen who, in an announcement yesterday, said in part:

I have very strong Christian beliefs, and personally I have always said when I accepted the Lord, I became more tolerant of others. I stopped judging people and try to live by the Golden Rule. This is part of my decision. I do not believe it is my role to judge others, regardless of my personal beliefs.... For me personally, I have always believed in traditional marriage between a man and a woman.....

But this issue isn’t about just what I believe. It’s about respecting others, including people who may believe differently than I. It’s about whether everyone has the same opportunities for love and companionship and family and security that I have enjoyed.

Gov. Chris Gregoire has publicly endorsed the proposal which also appears to have sufficient support in the state House of Representatives to pass in that chamber. Nevertheless, the Washington State Catholic Conference has issued a public statement (full text) urging retention of the definition of marriage as a union between a man and a woman. The statement argues in part:

Upholding the present definition of marriage does not depend on anyone’s religious beliefs. Washington State’s present law defining marriage as "a civil contract between a male and a female" is grounded not in faith, but in reason and the experience of society. It recognizes the value of marriage as a bond of personal relationships, but also in terms of the unique and irreplaceable potential of a man and woman to conceive and nurture new life, thus contributing to the continuation of the human race. A change in legislation would mean that the state would no longer recognize the unique sacrifices and contributions made by these couples, thereby adding to the forces already undermining family life today.

Canadian Tax Trial Analyzes Structure of FLDS Community

Canada's Income Tax Act, Sec. 143, sets out special tax rules for communal religious organizations.  Businesses they conduct that support the members of a religious congregation are treated as if earned by a trust whose beneficiaries are the members of the congregation.  As reported yesterday by Canadian Press, in Vancouver, British Columbia, a trial is under way to determine whether this provision applies to the polygamous FLDS community of Bountiful, B.C. under the leadership of Winston Blackmore.  Blackmore claims that Bountiful split from the U.S. based FLDS church in 2002 and that its residents make up a separate religious congregation so that income from businesses in the community should be spread for tax purposes over all the residents.  Canadian tax officials, on the other hand, say that Blackmore is merely the patriarch of a large polygamous family, and they recomputed Blackmore's tax filings for several years to add $1.5 million to Blackmore's income. They say that Sec. 143 was designed only for closed communes such as Hutterite colonies. The trial is expected to produce testimony on details of Bountiful's structure and organization, and the beliefs of its residents.

Minnesota Appeals Court Remands Challenge To State Defense of Marriage Act

In Benson v. Alverson, (MN Ct. App., Jan. 23, 2012), three same-sex couples sued a county registrar for refusing to issue them marriage licenses, claiming that Minnesota's Defense of Marriage Act (MDOMA) violates their rights under the Minnesota constitution.  The appeals court held that the trial court properly dismissed the state as a party to the lawsuit, and correctly found that MDOMA did not violate the Single Subject clause or the Freedom of Conscience protections of the state constitution.  However, the appeals court remanded the case for further proceeding, holding that the trial court had improperly dismissed equal protection, due process and freedom of association challenges to MDOMA.  AP reports on the decision.

In Egypt's New Parliament, Some Try To Modify Oath To Refer To "God's Law"

Egypt's newly elected 508-member parliament, the People's Assembly, met yesterday for the first time. Daily News Egypt reports that early in the session, which elected Freedom and Justice Party secretary general Saad Al-Katatny as speaker, controversy broke out over members who attempted to modify the constitutional oath administered to them. Salafi Al-Asala Party member, Mamdouth Ismail, and 15 other members added to the official oath calling for respect for the constitution and law, the phrase "as long as it does not contradict God's law." Some liberal members added to the oath saying they would serve the revolution's goals.

Cert. Denied In Challenge To Tax On Political Expenditures By Non-Profits

The U.S. Supreme Court today denied certiorari, refusing to grant review in Catholic Answers, Inc. v. United States, (Docket No. 11-511, cert. denied 1/23/2012). (Order List.) In the case, the 9th Circuit dismissed as moot a Catholic organization's challenge to the constitutionality of Section 4955 of the Internal Revenue Code. That section imposes an excise tax on political expenditures made by Section 501(c)(3) non-profit organizations.  (See prior posting.)

Yesterday Was 39th Anniversary of Roe v. Wade

Yesterday was the 39th anniversary of Roe v. Wade, the Supreme Court case that legalized abortion nation wide.  Rallies by abortion opponents were held in Lafayette Park across from the White House. (CNN) The U.S. Conference of of Catholic Bishops announced the National Prayer Vigil For Life scheduled for yesterday and today at the Basilica of the National Shrine of the Immaculate Conception in Washington. Yesterday President Obama issued a Statement (full text) marking the anniversary, saying in part:

[W]e must remember that this Supreme Court decision not only protects a woman’s health and reproductive freedom, but also affirms a broader principle: that government should not intrude on private family matters.  I remain committed to protecting a woman’s right to choose and this fundamental constitutional right....[N]o matter what our views, we must stay united in our determination to prevent unintended pregnancies, support pregnant woman and mothers, reduce the need for abortion, encourage healthy relationships, and promote adoption.  And ... we must also continue our efforts to ensure that our daughters have the same rights, freedoms, and opportunities as our sons to fulfill their dreams.

Anti-Evolution Bills Begin To Be Introduced In 2012 State Legislatures

The National Center for Science Education reported last week that so far this year, six separate anti-evolution bills have been introduced in state legislatures-- one in Oklahoma, one in Indiana, two in New Hampshire and two in Missouri. Here are links to the bills:  Oklahoma SB 1742; Indiana SB 0089; New Hampshire HB1148 and HB1457; Missouri HB1227 and HB1276.

French Politician Creates Controversy Proposing Jews and Muslims Have Their Holy Days Off

In France, the Green Party candidate for President, Eva Joly, has created a controversy by proposing that Jews and Muslims should be given the right to take off work or school on their major holidays.  According to a report in Haaretz today, Joly reasoned that since France's official holidays are based on Christian celebrations such as Easter, other religions should obtain "equal treatment in the public realm."  However politicians on both the right and left strongly criticized her proposal. Laurent Wauquiez, minister of higher education, said: "Our history and roots are Christian." He added:  "Toleration in France cannot be built on the negation of our past." Interestingly, Jewish groups are not eager to support the proposal either.  Richard Prasquier, president of the Representative Council of French Jewish Institutions, said: "Our country has a Catholic calendar: So what?"  A Muslim representative, the head of Paris' Great Mosque, said he liked the proposal, but it would not be easy to enact or implement it.

Recent Articles of Interest

From SSRN:

• Alfitri Alfitri, Can the Obligation of Zakat Be Enforced in a Non-Islamic State Like Indonesia?, (September 30, 2011).
• John Hasnas, Reflections on Corporate Moral Responsibility and the Problem Solving Technique of Alexander the Great, (Journal of Business Ethics, January 2012).

From SmartCILP:

• Daniel P. Dalton, The Religious Land Use and Institutionalized Persons Act--Recent Developments, 43 Urban Lawyer 853-876 (2011).
• Geoffrey W.G. Leane, Rights of Ethnic Minorities in Liberal Democracies: Has France Gone Too Far in Banning Muslim Women from Wearing the Burka?, 33 Human Rights Quarterly 1032-1061 (2011).
• Chad G. Marzen, Protecting Statements in Catholic Tribunal Proceedings Under the Priest-Penitent Privilege: Cimijotti v. Paulsen Considered, 88 University of Detroit Mercy Law Review 291-305 (2010).
• Michael W. McConnell, Is There Still a "Catholic Question" in America? Reflections on John F. Kennedy's Speech to the Houston Ministerial Association, 86 Notre Dame Law Review 1635-1653 (2011).

Recent Prisoner Free Exercise Cases

In Benning v. Georgia, 2012 U.S. Dist. LEXIS 4587 (MD GA, Jan. 13, 2012), an inmate who asserted that he is a "Torah observant Jew" challenged a prison's grooming policy, asserting that his religion bars him from using a razor on his facial hair and bars him from cutting his ear locks. The court upheld the prison's policy that if plaintiff wants to comply as to facial hair by using a depilatory, he must purchase it with his own funds from the commissary. However the court denied defendants' motion for summary judgment on the ear locks claim, and set the issue for trial. [corrected]

In Evans v. California Department of Corrections & Rehabilitation, 2012 U.S. Dist. LEXIS 5373 (CD CA, Jan. 18, 2012), a California federal district court allowed an inmate who is complaining that he has been denied a halal diet to move ahead with an Equal Protection claim added in his 4th Amended Complaint.  He asserted that authorities have forced him to betray his Muslim religious beliefs by forcing him to eat food which he sincerely believes is not halal, and by denying him access to the prison's kosher meal which is a permissible substitute for halal food.

In Bland v. Aviles, 2012 U.S. Dist. LEXIS 5583 (D NJ, Jan. 18, 2012), a jail inmate alleged denial of the right to attend religious services. The court dismissed his claim, with leave to file an amended complaint, finding that he had not alleged sufficient facts to support a free exercise or RLUIPA claim.

Jacob v. Colorado Department of Corrections, 2012 U.S. Dist. LEXIS 6213 (D CO, Jan. 19, 2012), is a Christian Separatist inmate's challenge under the 1st Amendment, RLUIPA and the Colorado constitution to a prison's restrictions on books, magazines, correspondence courses, the opportunity to take communion, and on classification of plaintiff as a member of a security threat group. A Colorado federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 151833, April 7, 2011) and dismissed claims for monetary relief but permitted plaintiff to move ahead on various claims under RLUIPA and the 1st Amendment for injunctive and declaratory relief.

In Monts v. Arpaio, 2012 U.S. Dist. LEXIS 5842 (D AZ, Jan. 18, 2012), an Arizona federal district court permitted an inmate who clams he adheres to Jewish beliefs (though he is not Jewish under religious law) to go to trial on whether he has a sincerely held belief in the religious necessity of eating a kosher diet.

Court Dismisses Claim That Security Clearance Revocation Was Based On Religious Issues

In Hegab v. Long, 2012 U.S. Dist. LEXIS 6203 (ED VA, Jan. 19, 2012), an employee of the National Geospatial-Intelligence Agency (NGA) claimed that his security clearance was unconstitutionally revoked on the basis of his wife's Islamic religion, her constitutionally protected speech and her employment by an Islamic faith-based organization.  The court dismissed the suit on the basis that review of an agency's security clearance revocation is precluded by the Supreme Court's 1988 decision in Department of Navy v. Egan.

Maine Legislators, Officials Form Legislative Prayer Caucus

Maine Today Media reported last week that Maine state legislators and state officials, including the governor, have formed the Maine Legislative Prayer Caucus. Last Tuesday, over 150 people, including 50 mostly Republican and a few Democratic legislators, participated in a ceremony announcing the new group.  The group is affiliated with Pray USA, an initiative that seeks to "preserve the Judeo-Christian heritage of our nation and protect American religious liberty." Maine is the sixth state to create a formal group. The group which is nonpartisan will meet once a week to pray for fellow legislators and other state and national government leaders. Gov. Paul LePage said: "The separation of church and state is not a separation from public life. Always, our courts are taking symbols of religion out of our public house, but they can't take religion out of our hearts."

UPDATE: On Jan. 17 the Maine Legislative Prayer Caucus issued a Call To Prayer For Maine, and a few days later the Freedom From Religion Foundation sent the Governor, legislative leaders and other caucus members a memo (full text) pointing out "historical fallacies, contradictions and inaccuracies" in the Call To Prayer document.

No Tithing Exemption Allowed From Garnishment Order

United States v. Thomas, 2012 U.S. Dist. LEXIS 5600 (ED CA, Jan. 17, 2012), is an action seeking garnishment of defendant's wages to pay off a $1.86 million balance on a restitution order growing out of her criminal conviction for embezzlement of funds from her employer. Among other claims, defendant sought to exclude 10% of her monthly pay from garnishment so she can use it to tithe to her church, the Church of Jesus Christ of Latter Day Saints. The court denied this request, holding:

defendant has provided no legal authority or argument whatsoever supporting the proposition that the court's denial of a tithing exemption from garnishment would constitute a First Amendment violation. For this lack of legal support alone, defendant's request should be denied.

Additionally, defendant failed to provide factual support for the proposition that she would be prevented from attending her church or temple if she failed to pay her tithe. 

In Nigeria, Islamic Militants Kill Around 150 In Attacks In Kano

In Nigeria, the Boko Haram-- a militant group that seeks to overthrow the current government and create an Islamic state-- has killed dozens in city of Kano.  The number of dead is reported variously between 143 and 162.  BBC News reports that the deaths came in a series of explosions around the city that is under 24-hour curfew.  Among the targets were police stations, State Security Service headquarters, and passport and immigration offices.

Rabbi Speculates On Whether New White House Chief of Staff Can Continue His Sabbath Observance

Earlier this month, President Obama appointed Jack Lew as his new chief-of-staff after his former chief-of-staff, Bill Daley, resigned. The new chief-of-staff is an Orthodox Jew. An interesting opinion piece this week in The Forward by Rabbi Ethan Tucker explores whether and how Lew will be able to continue to observe the Sabbath in a position that generally required 24/7 activity. Tucker writes in part:

We live in a thrilling moment for Shabbat observance. It is a moment in which the general culture is truly ready to hear much of its message. And it is also a moment in which being observant is not a barrier to serving one’s country and society at the highest echelons of power. I am sure Jack Lew will find ways to avoid all unnecessary meetings on Shabbat and will be in a position to avoid certain concrete physical tasks like writing that have been core elements of Shabbat observance for millennia. But when he does find himself in the office on a Saturday — beckoned by the president to deal with issues of national concern — I hope he and we will remember Rav Sheshet’s [Talmudic] insight: The Jew’s commitment to infusing our world with Jewish values and leadership is ultimately a 24/7 endeavor.

HHS Reacts To Comments On Required Contraception Coverage By 1-Year Conscience Extension

Last August, the Department of Health and Human Services issued a controversial interim final rule (full text) under the Affordable Care Act requiring that contraceptive services (all contraceptive methods, sterilization and counseling) be covered by most insurance policies without deductibles or co-pays. (Rule summary). The rule exempted from this requirement only those non-profit religious employers whose primary purpose is the inculcation of religious values and which also both employ and serve only individuals who share the groups' religious tenets.  That exemption was criticized by a number of religious groups as being too narrow. (See prior posting.) Yesterday, in a news release, the Department of Health and Human Services announced that after reviewing comments submitted on the interim final rule, it has decided to change it only by giving an additional year (until Aug. 1, 2013) for compliance to non-profit employers who, based on religious beliefs, do not currently provide contraceptive coverage in their insurance plan. The U.S. Conference of Catholic Bishops quickly issued a release quoting spokesmen who asserted: "In effect, the president is saying we have a year to figure out how to violate our consciences" and called the decision "nothing less than a direct attack on religion and First Amendment rights." The New York Times reports on the HHS decision and reactions of other groups.

Pentecostal Detention Officer Loses Most Claims About Pants-Only Policy

Finnie v. Lee County, Mississippi, (ND MS, Jan. 17, 2012), is a lawsuit brought by a former juvenile detention center security officer who was terminated after she insisted on wearing a skirt rather than the pants required by the sheriff's department uniform policy.  Plaintiff Crystal Finnie originally complied with the uniform policy, but refused to do so after she converted to the Pentecostal faith in August 2008.  In a 67-page opinion, the court dismissed Finnie's free exercise and free speech claims, as well as her Title VII religious and gender discrimination claims. However it permitted her to proceed with her claim that her dismissal was in retaliation for her filing an EEOC complaint. AP reports on the decision.

Pope Speaks To Bishops About Religious Freedom Threats In U.S.

Pope Benedict XVI yesterday addressed the bishops of Washington, DC and surrounding areas who are in the Vatican for their as limina visit. Zenit headlines its coverage of the talk: "Pope Backs U.S. Bishop's Concern About Religious Freedom." In his address (full text), the Pope said in part:

The Church’s witness, then, is of its nature public: she seeks to convince by proposing rational arguments in the public square. The legitimate separation of Church and State cannot be taken to mean that the Church must be silent on certain issues, nor that the State may choose not to engage, or be engaged by, the voices of committed believers in determining the values which will shape the future of the nation.

In the light of these considerations, it is imperative that the entire Catholic community in the United States come to realize the grave threats to the Church’s public moral witness presented by a radical secularism which finds increasing expression in the political and cultural spheres. The seriousness of these threats needs to be clearly appreciated at every level of ecclesial life. Of particular concern are certain attempts being made to limit that most cherished of American freedoms, the freedom of religion. Many of you have pointed out that concerted efforts have been made to deny the right of conscientious objection on the part of Catholic individuals and institutions with regard to cooperation in intrinsically evil practices. Others have spoken to me of a worrying tendency to reduce religious freedom to mere freedom of worship without guarantees of respect for freedom of conscience.

Here once more we see the need for an engaged, articulate and well-formed Catholic laity endowed with a strong critical sense vis-à-vis the dominant culture and with the courage to counter a reductive secularism which would delegitimize the Church’s participation in public debate about the issues which are determining the future of American society....

In this regard, I would mention with appreciation your efforts to maintain contacts with Catholics involved in political life and to help them understand their personal responsibility to offer public witness to their faith, especially with regard to the great moral issues of our time: respect for God’s gift of life, the protection of human dignity and the promotion of authentic human rights.

(See prior related posting.)

Study Says Polls Located In Churches May Impact Voter Behavior

According to a press release this week from Baylor University, a new study by Baylor researchers suggests that locating a polling place in a church may impact voting behavior.  The study by Dr. Jordan LaBouff and Dr. Wade Rowatt published in the International Journal for the Psychology of Religion found that those who answered surveys taken next to church buildings reported themselves more politically conservative and more negative toward non-Christians than did people who took the survey near government buildings. ABC News says that this study is consistent with a 2008 Pennsylvania one that found voters were more likely to support a school levy if their polling place was located in a school.

Religious Discrimination Claimed As Florist Refuses To Deliver To Successful Establishment Clause Plaintiff

A Rhode Island federal district court's Establishment Clause decision handed down last week is spawning new legal controversy.  In Ahlquist v. City of Cranston, the court held that in installing and maintaining a prayer mural in a high school auditorium, the Cranston School Committee violated the Establishment Clause. (See prior posting.) The Freedom from Religion Foundation wanted to congratulate the plaintiff in the case, 16-year old Jessica Ahlquist. However, as an FFRF press release and a turnto10 report indicate, three Cranston florists refused to deliver flowers to Ahlquist. Ultimately FFRF had to use a Connecticut florist.  In a formal complaint (full text) filed yesterday with the Rhode Island Commission on Human Rights, FFRF alleges that one of the florists in Cranston violated Rhode Island's Public Accommodations statute by discriminating on the basis of religion in refusing to fill FFRF's order.  FFRF alleges the discrimination was a result of plaintiff's atheism and FFRF's support of her.

Nevada Church Camp Complains Wildlife Project Cut Off Baptismal Stream

A church camp in southern Nevada is making a claim for $86,000 against the U.S. Fish and Wildlife Service for damage stemming from the government's damming and rerouting streams that previously flowed through the 40-acre camp site.  A report yesterday from 8 News Now and a press release from the Nevada Policy Research Institute give the background on the claim, apparently filed administratively in anticipation of an eventual federal lawsuit.

Victor Fuentes, a Cuban refugee, started Solid Rock Christian Ministries and in 2007 bought an old ranch in Nevada's Armagosa Valley which he turned into a camp named Patch of Heaven. The church called the camp an "oasis for anyone seeking God" and used one of the two streams flowing through the camp for baptisms. However the camp site is completely surrounded by the federal Ash Meadows National Wildlife Refuge. In 2010, the federal government began rerouting streams in the Refuge. This had the effect of cutting off the streams in the camp that were used for both recreational and baptismal purposes.  In December 2010, a few weeks after the rerouting was completed, a storm raised waters over the banks of the rerouted streams and caused severe mud and water damage to the camp buildings.  While the claim appears to be for this damage, the camp's lawyers are emphasizing the loss of use of the stream for baptismal purposes, saying: "This was a river that was used to for free exercise of religion in baptism."

Air Force Office Changes Latin Motto To Refer To "Miracles" Instead of "God"

God and Country blog reported yesterday that the Military Association of Atheists and Freethinkers (MAAF) has convinced the U.S. Air Force Rapid Capabilities Office (RCO) to change the logo on its official patch which, like many, apparently contain "in-jokes."  The RCO patch featured the motto: "Opus Dei Cum Pecunia Alienum Efficemus" (Doing God’s Work with Other People’s Money).  After what MAAF describes as "several months of needling," the RCO changed its logo to now read "Miraculi Cum Pecunia Alienum Efficemus" (Doing Miracles with Other People’s Money). MAAF describes the change as "a victory, but certainly nothing to write home about."

Challenge To Nevada's Limit On Who Can Perform Marriages Moves Ahead

In Martinez v. Clark County, 2012 U.S. Dist. LEXIS 5313 (D NV, Jan. 18, 2012), a Nevada federal district court, while dismissing claims against the state attorney general, refused to dismiss claims against the county and county officials challenging the constitutionality of Nevada's statutes limiting who may perform marriage ceremonies.  Under Nevada law, in order to obtain a certificate to solemnize marriages an applicant must be affiliated with a religious organization. The court, finding plaintiffs had standing, allowed them to proceed with their claims that the statute violates the Establishment Clause, Equal Protection clause and Religious Test clause of the federal constitution, as well as the religious liberty protections of the Nevada constitution.

Indian Court Permits Individual Religious Ritual In Government Offices

According to the Times of India, the Madras high court has upheld the right of individuals to conduct Ayudha Puja or Saraswathi Puja rituals in their government offices. Petitioner, S P Muthuraman, in a public interest writ petition, had asked the court to ban all religious activities within government offices. The court held however:

Irrespective of religion, Ayudha Puja is a reverence shown by cobblers, weavers, farmers, autorickshaw drivers, rickshaw-pullers, carpenters, shopkeepers, chartered accountants, advocates, doctors etc., to objects which they use to earn their livelihood.... The form of worship or veneration to files and records at the close of the working day preceding the Ayudhua Puja or Saraswathi Puja holidays cannot be called as religious activity by the government, affecting the secular nature of the state.... In government offices, if an individual shows respect and reverence to the materials, books, files or records which are being handled by the individual, it will be referable to his individual freedom and there is nothing to show that it affects the secular nature of the state.

New B.C. Special Prosecutor Will Look At Charges Other Than Polygamy Against FLDS Members

As previously reported, last November a British Columbia trial court, in an advisory opinion, upheld most applications of Canada's anti-polygamy law, and that decision is not being appealed. (Globe and Mail, 12/21). Earlier this month, Richard Peck who in 2007 had been appointed special prosecutor in the polygamy case involving members of the FLDS church and had recommended against filing charges, said he did not want to be involved with the case any longer. (Globe and Mail, 1/9). Now according to yesterday's Globe and Mail, Vancouver lawyer Peter Wilson has been named new special prosecutor by the British Columbia Criminal Justice Branch to look into sexual offenses against minors in the FLDS town of Bountiful. However his mandate does not include looking into polygamy charges.

Church In Bankruptcy Need Not Disclose Membership List

In re Deliverance Christian Church, 2011 Bankr. LEXIS 5219 (ND OH, Dec. 1, 2011), involves the issue of how much information a church in bankruptcy must furnish to a bank that is a secured creditor of the church.  While the church agreed that the bank is entitled to financial information, at issue in the case is whether it is entitled to the church's membership list, or instead whether the church may furnish information in which contributors are identified only by numbers. The court held that membership lists are subject to heightened protection because of the chilling effect on freedom of association, membership and future giving that may result from their release. Since the bank had not shown a compelling need for actual names of members or contributors, the court ordered production in discovery of all documents relating to tithes or donations, including pledge commitment records, but the church was authorized to provide a sanitized version to protect the personal information of contributors.

Judge Questions Lawyers On Whether Lord's Prayer Is Christian

Yesterday's Wilmington (DE) News Journal reports on an interesting line of questioning raised by a Delaware federal district judge in oral arguments in Mullin v. Sussex County, Delaware.  The case is an Establishment Clause challenge to the opening of County Council meetings with the recitation of the Lord's Prayer. (See prior posting.) The U.S. Supreme Court has permitted legislative prayer where it does not proselytize or advance or disparage any one particular religion.  Sussex County argues that the Lord's Prayer is generic and does not advance a particular religious faith.  Judge Leonard Stark asked County Attorney J. Scott Shannon: "Is there any dispute that today, only Christians say the Lord's Prayer?"  Shannon replied that Jesus "was not offering a Christian prayer in the Christian tradition because no Christian tradition existed."  Shannon said that while the Lord's Prayer is commonly associated with Christianity, it came from Jesus who was a Jew. However plaintiffs' attorney Alex Luchenitser argued that "Our Father" is widely understood as a Christian way of referring to Jesus. Judge Stark said: "I'm afraid you all might have brought me a difficult case because there is no reference to Jesus or Allah" in the prayer.

Maldives Religious-Political Battles Lead To Competing Arrests

Religious-political battles in the Maldives are intensifying.  Minivan News reports that last Thursday opposition Dhivehi Qaumee Party (DQP) Deputy Leader Dr Mohamed Jameel Ahmed was summoned for questioning after the President's Office called for an investigation into "slanderous" remarks allegedly made by Ahmed.  It was charged that he accused the government of working under the influence of “Jews and Christian priests” to weaken Islam. Ahmed was then taken into custody Sunday night. Chief Criminal Court Judge Abdulla Mohamed, however, ordered Ahmed's immediate release, holding unconstitutional Section 125 of the Penal Code that permits detention for making a fabricated statement.  Now AP reports that on Monday the military in turn arrested Judge Mohamed "for corruption, in particular for allowing his judicial decisions to be determined by political and personal affiliations and interests."

UPDATE: AP 1/19 reports that the military still holds Judge Mohamed despite orders by the Supreme Court and the prosecutor general for his release. Maldives Vice President Mohammed Waheed Hassan also criticized the "extrajudicial arrest".

Cert. Denied By Supreme Court In 2 Prayer Cases

The U.S. Supreme Court today denied certiorari in two cases raising the issue of when public bodies may open their sessions with prayer. (Order List).  The first of the cases in which it denied review is Forsyth County, North Carolina v. Joyner, (Docket No. 11-546, cert. denied 1/17/2012). In the case, the 4th Circuit, in a 2-1 decision, held that  the prayer policy of a county commission violated the Establishment Clause even though the policy was neutral on its face. All congregations in the community were invited to send a religious leader to lead an invocation at one of the commission meetings. As implemented, however, 80% of the prayers referenced Jesus and no non-Christian religious leader ever offered the invocation. (See prior posting.) [corrected]

The second case in which the court denied review is Indian River School District v. Doe, (Docket No. 11-569, cert. denied 1/17/2012). There the 3rd Circuit found a school board's prayer policy to be unconstitutional, holding that the test for whether prayers opening school board meetings violate the Establishment Clause is the test used for prayer at school events, not the test for when invocations are permitted in legislative bodies. (See prior posting.) [Thanks to Rob Luther for the lead.]

Zimbabwe Court Says School Must Admit 4-Year Old Rastafarian

In Zimbabwe's second largest city, Bulawayo, a high court judge in a case brought by Zimbabwe Lawyers for Human Rights has ordered school authorities to allow a a 4-year old Rastafarian boy to enroll in in class. Radio VOP reported yesterday that school authorities at Masiyephambili Junior School had barred the child because he was wearing his hair in dreadlocks. The court wrote in part: "There is no lawful basis for the Respondents to interfere with the minor child’s right to education based on his long hair that expresses his religious beliefs."

Polish Court Fines Singer For Statement Questioning Bible

A court in Warsaw, Poland yesterday imposed a fine equivalent to $1450 (US) on popular singer Doda (Dorota Rabczewska) for offending religious feelings.  AP reports that the case grew out of a 2009 interview in which Doda said that she doubts the Bible "because it's hard to believe in something that was written by someone drunk on wine and smoking some herbs." [Thanks to Alliance Alert for the lead.]

State University Cancels Course On Biblical Insights Into Business Management

Yesterday's Iowa State Daily reports that a class which was originally scheduled in Iowa State University's business school has now been cancelled because of church-state concerns. Finance Professor Roger Stover had proposed a new one-hour independent study course titled "Finance 290X: Application of Biblical Insight into the Management of Business/Organization."  He says many leading universities are actively exploring the role of spirituality in business management.  However, Hector Avalos, a professor of philosophy and religious studies who was one of the faculty who objected to the course, said that Stover: "has no expertise in either academic biblical studies or religious studies, and this raises the question of whether Finance 290X is simply a means to obtain college credit for religious instruction rather than for an objective academic study of different Christian viewpoints about business."

Today Was Religious Freedom Day

Today was Religious Freedom Day, marking the 226th anniversary of the adoption of the Virginia Statute for Religious Freedom. Last week, President Obama issued an official Presidential Proclamation (full text) declaring the observance. The Proclamation reads in part:

For nearly four centuries, men and women have immigrated to America's shores in pursuit of religious freedom.  Hailing from diverse backgrounds and faiths, countless settlers have shared a simple aspiration -- to practice their beliefs free from prejudice and persecution.  In 1786, the Virginia General Assembly took a bold step toward preserving this fundamental liberty by passing the Virginia Statute for Religious Freedom, which brought to life the ideal of religious tolerance from the texts of the Enlightenment in the laws of state.  On Religious Freedom Day, we celebrate this historic milestone, reflect upon the Statute's declaration that "Almighty God hath created the mind free," and reaffirm that the American people will remain forever unshackled in matters of faith.

[Thanks to Blog from the Capital for the lead.] 

Indian Court Limits Use of Loudspeakers By Houses of Worship

In India last week, the Delhi High Court, in response to a complaint about the noise from loud speakers at a temple and a mosque, placed limits on use of sound amplification by houses of worship.  Indian Express reported last Wednesday that the court barred religious establishments in Ekta Vihar and Sunder Nagri from placing loudspeakers higher than either 8 feet or close to the top of the building. Any loudspeakers must face toward the building so that only those voluntarily attending hear the sound.  The court wrote:

No person is entitled, on the pretext of practising or propagating one’s religion, to cause such nuisance in his or her neighbourhood, and disturb peace in the area. Merely because one considers it beneficial for others to hear the aarti, aazan, religious prayers or sermons, one cannot thrust the same upon others against their will, and at the cost of peace and tranquility.

Saudi King Appoints More Liberal Head of Religious Police

The Wall Street Journal reports that on Friday, Saudi Arabia's King Abdullah bin Abdulaziz al Saud took steps to liberalize the country's religious police by placing a new person in charge of the Committee for the Promotion of Virtue and Prevention of Vice. The king replaced hard-liner Sheik Abdulaziz al-Humain with Sheik Abdulatif al-Sheikh. The new appointee has a history of opposing child marriage, and of defending women's right to work and mix with men in public places.

Deputy Who Was Subject of Mel Gibson Anti-Semitic Tirade Can Go To Trial On Employment Discrimination Claim

A Los Angeles Superior Court judge ruled Thursday that a  deputy sheriff's religious discrimination and hostile work environment claims should go to a jury for trial. However the court dismissed his retaliation claim. Plaintiff is James Mee who in 2006 arrested actor Mel Gibson on drunk driving charges. Mee alleges that during the arrest Gibson launched into an anti-Semitic tirade against Mee, who is Jewish. Mee says he was ordered by his superiors-- who were friends with Gibson-- to delete reference to Gibson's anti-Semitic statements in his report, and to file them as a confidential supplemental report. (See prior posting.) According to an AP report on Thursday's decision, Mee says that his superiors ostracized him and blocked his chances for a promotion. In allowing the claims to go to trial, the court questioned whether Mee could show damages since he still works for the sheriff's department.

Recent Articles and Book of Interest

From SSRN:

• Sahar F. Aziz, From the Oppressed to the Terrorist: American Muslim Women Caught in the Crosshairs of Intersectionality, (Hastings Race & Poverty Law Journal, Vol 8, No. 1, Spring 2012).
• Sahar F. Aziz and Abdullah Musalem, Citizens, Not Subjects: Debunking the Sectarian Narrative of Bahrain's Pro-Democracy Movement, (Institute for Social Policy and Understanding, July 2011).
• David A. Skeel, Hauerwasian Christian Legal Theory, ( Law & Contemporary Problems, Forthcoming).
• Jessie Hill, (Dis)Owning Religious Speech, (Case Legal Studies Research Paper No. 2012-2, Jan. 2012).
• Peter Mazzacano, Puritanism, Godliness, and Political Development in Boston and the General Court (1630-1640), (The Journal Jurisprudence, Vol. 12, pp. 599-678, 2011).
• Aziz Z. Huq, Private Religious Discrimination, National Security, and the First Amendment, (Harvard Law and Policy Review, Vol. 5, p. 347, 2011).
• Jessica Feinberg, Exposing the Traditional Marriage Agenda, (Northwestern Journal of Law and Social Policy, Forthcoming).
• Assaf Likhovski, Taxation Without a State: Jewish Voluntary Taxes in Mandatory Palestine, 1938-1948 (January 11, 2012).

From SmartCILP and elsewhere:

• Hossein Esmaeili, The Nature and Development of Law in Islam and the Rule of Law Challenge in the Middle East and the Muslim World, 26 Connecticut Journal of International Law 329-366 (2011).
• Kevin Gibson, Making Sense of the Sacred, [Abstract], 27 Negotiation Journal 477-492 (2011).
• George W. Dent, Perry v. Schwarzenegger: Is Traditional Marriage Unconstitutional?, Engage Volume 12, Issue 3, November 2011.
• Mark P. Strasser, Perry, Same-Sex Marriage, and Federal Constitutional Guarantees, Engage Volume 12, Issue 3, November 2011.
• William L. Saunders, Does Neutrality Equal Secularism? The European Court of Human Rights Decides Lautsi v. Italy, Engage Volume 12, Issue 3, November 2011.

Forthcoming Book:

• Claudia E. Haupt, Religion-State Relations in the United States and Germany: The Quest for Neutrality, (Cambridge Univ. Press, Jan. 2012).

U.S. Catholics Increasingly Resorting To Canon Law Courts In Disputes With Church

AP yesterday reported on the growing number of U.S, Catholics who are turning to ecclesiastical courts in disputes beyond those involving marriage and annulment. Canon lawyers say that Catholics are using the Church's own legal system to challenge various sorts of decisions made by bishops or priests.  For example, recent cases involve a challenge to a priest's decision to rent out space in a local church for a band to use, and a nun's complaint that her Mother Superior had disclosed confidential medical information about her to others. Other cases involve challenges to church closures.