Challenge To Utah's Polygamy Law Can Proceed Against County Prosecutor

In Brown v. Herbert, (D UT, Feb. 3, 2012), a Utah federal district court held that members of an openly polygamous family (subjects of the television show Sister Wives) have standing to bring suit against the County Attorney to challenge the constitutionality of the state's Anti-Bigamy Statute. However the court dismissed for lack of standing their similar claims against Utah's governor and attorney general. Finding that Utah's Anti-Bigamy statute is generally considered moribund, the court held that plaintiffs needed to show threatening activities by government officials to show that a credible threat of prosecution exists. State officials had taken no action to credibly threaten prosecution. They have announced that they will not prosecute consenting adults for polygamy unless other crimes are also involved. However the Utah County prosecutor's office has taken threatening steps by opening an investigation that led plaintiffs to flee to Nevada. The court held that plaintiffs also have standing under a First Amendment chilling of speech theory. The Salt Lake Tribune reports on the decision.

O Centro Files Land Use Lawsuit Against New Mexico County

O Centro Espirita Beneficente Uniao do Vegetal (UDV), the religious group that in 2006 won in the Supreme Court the right to use hoasca-- sacramental hallucinogenic tea (see prior posting)-- has now filed a land use lawsuit against Santa Fe County, New Mexico. The Santa Fe New Mexican reports that the federal lawsuit, filed on Thursday, grows out of the county commission's 3-2 denial of UDV's application to build a new temple to replace its current facilities that it has outgrown.  The complaint (full text) in O Centro Espirita Beneficente Uniao do Vegetal (UDV-USA) v. Board of County Commissioners of Santa Fe County, (D NM, filed 2/2/2012) charges in 8 counts that the county's denial violated the 1st and 14th Amendments, various provisions of RLUIPA, and the New Mexico Religious Freedom Restoration Act. [Thanks to Eric Rassbach via Religionlaw for the lead.]

Recent Prisoner Free Exercise Cases

In Johnson v. Hetzel, 2012 U.S. Dist. LEXIS 9033 (MD AL, Jan. 26, 2012), an Alabama federal district court adopted a federal magistrate's recommendations (2011 U.S. Dist. LEXIS 152440, Dec. 12, 2011) and dismissed a Muslim inmate's claim that on one occasion while in a restricted privileges dorm he was not allowed to attend a Friday Jumah service.

In Bartholomew v. Moore, 2012 U.S. Dist. LEXIS 10031 (ED CA, Jan. 26, 2012), a California federal magistrate judge recommended rejecting a Muslim inmate's complaint that his free exercise rights were violated when a prison officials insisted that if he wanted to work in the prison's metal fabricating plant he would be required to work on Fridays and miss Jumah services. The court also rejected the claim that plaintiff was not rehired in the prison job because he is a Muslim.

In Ryidu-x v. Wolfe, 2012 U.S. Dist. LEXIS 11546 (D MD, Jan. 31, 2012), a Maryland federal district court rejected an inmate's claim that his constitutional rights were violated when authorities denied him mail order privileges, commissary items, and access to his prison records because of his use of his legally-recognized religious name.

In Sloane v. Neveda, 2012 U.S. Dist. LEXIS 10400 (D NV, Jan. 30, 2012), a Nevada federal magistrate judge granted a Jewish inmate's motion to amend his complaint to add a free exercise claim against a shift supervisor who allegedly failed to protect Plaintiff's constitutional right to observe Passover by assuring delivery of Seder supplies on time and his right to eat only kosher for Passover meals. The court refused to permit amendments to add various equal protection claims.

In Vann v. Fischer, 2012 U.S. Dist. LEXIS 11052 (SD NY, Jan.26, 2012), a New York federal district court denied a TRO and temporary injunction to an inmate who is a Santeria Practitioner who claimed that he was disciplined for wearing religious beads in ways that do not conform to prison rules and that his picture was taken wearing his religious beads.

In Jones v. Williams, 2011 U.S. Dist. LEXIS 152524 (D OR, Jan. 25, 2012), an Oregon federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 152523, Oct. 28, 2011), and dismissed a Muslim inmate's claims that his free exercise rights were violated when he was served pork on one occasion, was ordered to cook pork as part of his kitchen duties, and when grills were not adequately cleaned after frying pork.

In Aladimi v. Hamilton County Justice Center, 2012 U.S. Dist. LEXIS 12283 (SD OH, Feb. 1, 2012), an Ohio federal magistrate judge recommended dismissing on statute of limitations and other pleading grounds a Muslim inmate's complaint that he was denied the right to pray 5 times a day, harassed when he attempted to pray and subjected to offensive remarks by clergy of other faiths who visited the jail where he was housed. The magistrate also recommended denying plaintiff's motion to file a second amended complaint.

In Mestre v. Wagner, 2012 U.S. Dist. LEXIS 12093 (ED PA, Jan. 31, 2012), a Pennsylvania federal district court dismissed a Buddhist inmate's complaint that there was a 7-week delay in obtaining completely vegan meals.

In Johnson v. Nash, 2012 U.S. Dist. LEXIS 11118 (D NV, Jan. 31, 2012), a Nevada federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 152580, Sept. 1, 2011) and denied a Muslim inmate's request for a preliminary injunction against retaliatory cell searches. Plaintiff claimed that defendants destroyed his prayer rug by throwing four cartons of milk on it, and shipped out his copy of Islam in Focus because it was an Islamic book.

In Roy v. Dominguez, 2012 U.S. Dist. LEXIS 11230 (ND IN, Jan. 31, 2012), an Indiana federal district court dismissed a former inmate's complaint that while in jail officials would not schedule Jehovah's Witness chapel services, but allowed plaintiff to move ahead with his claim that jail authorities made it difficult for his minister to give him spiritual guidance. NWI Times reports on the decision.

Texas RFRA Claims Survive In Plano School "Candy Cane" Litigation

Yet another decision has been handed down in the 7-year litigation over Plano, Texas Independent School District rules that, among other things, prevented a student from handing out candy canes with attached religious messages. In Morgan v. Plano Independent School District, 2012 U.S. Dist. LEXIS 12875 (ED TX, Feb. 1, 2012), a Texas federal magistrate judge summarized the prior history of the case:

This Court and the Fifth Circuit have upheld the 2005 policy as to its constitutionality. This Court has also upheld the facial constitutionality of the 2004 policy. The Fifth Circuit en banc has held that various administrators were entitled to qualified immunity. After seven years, the issues have narrowed. Yet, the case proceeds on with both parties having very divergent views of the law and how the law applies to the case.

In this phase of the litigation, the school board sought dismissal of Plaintiffs' claims for monetary, injunctive and declaratory relief under both the Texas Constitution and the Texas Religious Freedom Restoration Act. The magistrate judge recommended dismissal of the state constitutional claims, but concluded that the school district had not met its burden under TRFRA to show a compelling interest in the manner that three children were prevented from handing out religious-themed tickets and pencils under their school's 2004 (as opposed to its 2005) policy. (See prior related posting.)

School Board Wants To Keep "Bible Man" Assemblies

In Jackson County, Alabama, for 35 years elementary schools have held regular student assemblies featuring "Bible Man" who tells students Bible stories.  According to yesterday's Huntsville (AL) Times, school board members last Monday rejected a complaint filed by the Freedom from Religion Foundation on behalf of the parents of a North Sand Mountain School student. The Board is now attempting to work out a way to continue to legally hold the assemblies. School officials suggest that offering Bible Man during a free period in which students have the choice of other activities as well may be a solution. Until changes are implemented, Bible Man will not return to North Sand Mountain School. Alabama state senator Shadrack McGill, a supporter of Bible Man, said: "We were established to be a godly nation, a Christian nation. We need God in government. We need God in the public school." He suggested that those who oppose the practice should home school their children. [Thanks to Edward Still for the lead.]

Judge Issues Candid Memos In School Graduation Prayer Lawsuit

In May, Americans United filed a lawsuit challenging the Medina Valley, Texas Independent School District's plan to include student-led prayers in its graduation ceremony. The district court issued a broad preliminary injunction against prayer. (See prior posting.) The 5th Circuit quickly dissolved the preliminary injunction. (See prior posting.) Since then, Western District of Texas federal district Judge Fred Biery has filed several interim rulings with rather candid observations on the case which is captioned Schultz v. Medina Valley Independent School District.  On Nov. 2, the court ruled on several motions, including allowing an amended complaint to be filed. In the opinion, Judge Biery said in part:

the parties are spending what appears to be inordinate amounts of money and time which could be better spent on educating students. That of course would require the parties, with the assistance of counsel, to find some reasonable compromise. Or as the modern urban philosopher Rodney King once said, “[C]an we all get along?”

On Nov. 28, the court filed a memorandum titled Observations on Approaching Jury Trial suggesting that the school district had already made concessions that should be sufficient for the parties to reach a settlement. Judge Biery concluded his observations as follows:

Nevertheless, if the parties choose to spend more money and take more time away from educating students, the Court will proceed with logistical jury trial planning, though the Court believes both sides will rue such choice. Jesus of Nazareth and St. Paul express the same lesson this way: You shall reap what you shall sow and They know not what they do.

In a Dec. 6 opinion, the court also expressed frank views on the decision of one of the plaintiffs to withdraw rather than disclose her identity as the court had said she must:

Throughout history, there have been people who take risks to stand up for what they believe to be right, and sometimes unfortunate consequences flow from their courage. Young people the same age as Corwin Schultz and Pat Doe lie in the cemeteries of Normandy because they did not shrink from their duty to scale the cliffs of Omaha Beach and ultimately defeat a government which would, if undefeated, have continued to oppress the Jewish minority.

Within the American Constitutional experience, Rosa Parks, Congressman John Lewis, and other African Americans could have gone quietly to the back of the bus, continued to go to separate restrooms and water fountains and subjugated their freedom and their right to vote to the will of the majority government holding power.

Finally, on Feb. 4, the court issued an Advisory on the right of student graduation speakers, given the school's agreement that it will not approve the student remarks:

Because of the governmental disclaimer, the student speaker's right under First Amendment concepts of free speech would allow for requests for private citizen audience participation in which private citizens might or might not join. For example, if a Muslim student were to be valedictorian, she or he could express a particular view verbally and physically within the Muslin tradition and the audience might or might not join in facing Mecca if requested.

On the other hand, those government officials on stage are, in that setting, not private citizens and represent the diverse religious and non-religious community as a whole. While the government official might agree with the student speaker, in the role of government official within First Amendment concepts of government not endorsing or promoting a particular religious belief, the government official should refrain from facing Mecca and expressing agreement while wearing the government hat.

San Antonio Express-News reports on the latest Advisory.

Iowa High Court Holds Ban On Steel-Wheel Tractors Violates Mennonites' Free Exercise Rights

In Mitchell County v. Zimmerman, (IA Sup. Ct., Feb. 3, 2012), the Iowa Supreme Court held that a county ordinance prohibiting use on paved roads of tractors equipped with steel cleated wheels violates the 1st Amendment rights of members of the Old Order Groffdale Conference Mennonite Church.  The Mennonites adopted the steel wheel requirement in order to prevent tractors displacing the horse and buggy and destroying their close-knit community.  The court concluded that the ordinance is not one of "general applicability" because it contains exemptions for school buses to use ice grips and tire studs year round, and does not address sources of road damage other than steel wheels. A free exercise challenge to a law that is not generally applicable will succeed unless the state shows a compelling interest and a regulation narrowly drawn to further that interest.The court concluded that the county had not shown that the ordinance was narrowly tailored.  It said: "A more narrowly-tailored alternative might allow steel wheels on county roads in some circumstances, while establishing an effective mechanism for recouping the costs of any necessary road repairs if damage occurs." The Des Moines Register reports on the decision.

UPDATE: According to AP (2/8), Mitchell County will not appeal the decision to the U.S. Supreme Court because the ordinance at issue in it has now been replaced by a different one which the county attorney believes will be upheld if challenged.

9th Circuit Orders Recordings Of Proposition 8 Trial To Remain Under Seal

In Perry v. Brown, (9th Cir., Feb. 2, 2012), the U.S. 9th Circuit Court of Appeals held that a California district court abused its discretion in ordering the unsealing of a video recording of the trial proceedings in the case challenging the constitutionality of California's Proposition 8-- the ban on same-sex marriage. Judge Vaughn Walker had the recordings made solely for his in-chambers use. Those challenging Proposition 8 argued that release of the recordings would have a chilling effect on expert witnesses' willingness to cooperate in future proceedings. The unsealing was ordered by Judge Walker's successor following Walker's retirement. (See prior posting.) The 9th Circuit said:

the district court failed to appreciate the nature of the statements that the trial judge had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so. The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments. Upon this record, there is only one plausible application of the standard for sealing a record that is, arguendo, subject to the common-law right of public access: the interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release.

AP reports on the decision.

Fines Against Church of Scientology Upheld By French Court

AP reports that in France yesterday, an appeals court upheld a lower court's fraud conviction of the Church of Scientology that had been charged with pressuring members to pay large amounts for questionable remedies. The court upheld the fines imposed by the lower court--  the equivalent of $530,000 for the church and $261,900 for its bookstore. At the trial court level, prosecutors lost their bid to have the church dissolved or closed down in France which does not consider Scientology to be a legitimate religion. (See prior posting.)

NYPD Report Urges Increased Surveillance of Shiite Mosques

AP reported yesterday on the contents of a 2006 New York Police Department Intelligence Strategy Report (full text) that recommended increased surveillance of Shiite mosques as a way to locate Iranian terror threats. According to AP: "The document also renews debate over how the NYPD privately views Muslims."

President Speaks At National Prayer Breakfast

President Obama spoke yesterday at the National Prayer Breakfast held at the Washington Hilton Hotel in Washington, D.C. (Full text of remarks.) He said in part:

[I]n my moments of prayer, I’m reminded that faith and values play an enormous role in motivating us to solve some of our most urgent problems, in keeping us going when we suffer setbacks, and opening our minds and our hearts to the needs of others. 

We can’t leave our values at the door.  If we leave our values at the door, we abandon much of the moral glue that has held our nation together for centuries, and allowed us to become somewhat more perfect a union.  Frederick Douglass, Abraham Lincoln, Jane Addams, Martin Luther King, Jr., Dorothy Day, Abraham Heschel -- the majority of great reformers in American history did their work not just because it was sound policy, or they had done good analysis, or understood how to exercise good politics, but because their faith and their values dictated it, and called for bold action -- sometimes in the face of indifference, sometimes in the face of resistance....

And when I talk about shared responsibility, it’s because I genuinely believe that in a time when many folks are struggling, at a time when we have enormous deficits, it’s hard for me to ask seniors on a fixed income, or young people with student loans, or middle-class families who can barely pay the bills to shoulder the burden alone.  And I think to myself, if I’m willing to give something up as somebody who’s been extraordinarily blessed, and give up some of the tax breaks that I enjoy, I actually think that’s going to make economic sense.

But for me as a Christian, it also coincides with Jesus’s teaching that “for unto whom much is given, much shall be required.”  It mirrors the Islamic belief that those who’ve been blessed have an obligation to use those blessings to help others, or the Jewish doctrine of moderation and consideration for others.

CNN Money headlines its coverage of the President's remarks: "Obama: Jesus would back my tax-the-rich policy." The Washington Post says that this year's Prayer Breakfast had a different tone than usual, with more unscripted moments.

550 Sex Abuse Victims File Claims In Milwaukee Diocese Bankruptcy

Yesterday at 4:00 p.m. was the deadline for filing of claims in the bankruptcy proceedings of the Catholic Archdiocese of Milwaukee.  The Milwaukee Sentinel-Journal reported yesterday that at least 550 people filed sex abuse claims-- the largest number in any of the 8 diocesan bankruptcies since 2004. The archdiocese will object to claims relating to abuse by religious order priests who it says were not diocese employees.  It will also raise defenses against three of the claims against priests.

Retired General With Anti-Muslim Record Withdraws As West Point Prayer Breakfast Speaker

The New York Times reports that the U.S. Military Academy on Monday announced that retired Lt. Gen William G. Boykin "has decided to withdraw speaking at West Point’s National Prayer Breakfast" on Feb. 8. The announcement of Boykin's planned appearance drew protests because of his record of anti-Muslim statements. (See prior posting.)

Court Denies Preliminary Injunction On Promotions Of Non-Liturgical Navy Chaplains

In In re: Navy Chaplaincy, (D DC, Jan. 30, 2012), the D.C. federal district court denied a preliminary injunction in an Establishment Clause challenge to the Navy Chaplain Corps’ selection board process for voting on the promotion of chaplains. Plaintiffs claimed that the process favors Catholic and liturgical Protestant chaplains, while leaving non-liturgical chaplains underrepresented in the Navy.  The court held that plaintiffs lack standing because they have failed to show that they will suffer an injury. Also they have not shown a substantial likelihood of success on the merits: "plaintiffs have submitted no evidence from which the court could assume that the future promotion boards will follow any putative pattern of alleged past discrimination." (See prior related posting.)

Indiana Senate Passes Creationism Bill Which Is Criticized By Intelligent Design Advocates

Yesterday, the Indiana state Senate passed SB 89 (full text) by a vote of 28-22.  The bill allows public schools to:

offer instruction on various theories of the origin of life. The curriculum for the course must include theories from multiple religions, which may include, but is not limited to, Christianity, Judaism, Islam, Hinduism, Buddhism, and Scientology.

Interestingly, the Discovery Institute, the leading center promoting the theory of intelligent design, issued a press release criticizing the Indiana Senate's passage of the bill. Attempting to distinguish intelligent design from creationism, the Institute said in part: "There are plenty of scientific criticisms of Darwin’s theory today, and science students should be able to hear about them, not about religion.”

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.