Egyptian Court Sentences Christian For Insulting Prophet; Separate Case Dismissed

BikyaMasr reports today that a court in the southern Egyptian province of Assiut has sentenced Makram Diab, a Christian, to 6 years in prison for showing contempt of religion and insulting the Prophet Muhammad. Diab, a school employee, made remarks that infuriated his Muslim co-workers who went on strike until he was arrested and prosecuted.  Earlier this week, according to AP, a court in Cairo threw out a lawsuit against telecommunications mogul Naguib Sawiris, also a Christian, who angered Muslims by sending out via Twitter a cartoon showing Mickey Mouse in a beard and Minnie Mouse in a veil. (See prior posting.) The court held that plaintiffs were not eligible to bring a religious defamation lawsuit. But two other suits against Sawiris based on the same cartoons are still pending in Egyptian courts.

Scottish Court Limits Conscientious Objections Of Midwives

A Scottish court has rejected the claim by two midwives employed at Glasgow's Southern General Hospital that because of their conscientious objection they should not be required to delegate to, supervise or support staff on the labor ward who are directly involved with patients undergoing termination of pregnancy. In In re Petition of Doogan, (CSOH, Feb. 29, 2012), the Court of Session (Outer House) held that the conscientious objection provisions of the Abortion Act 1967 only excuse medical personnel from participating in the treatment of a patient, not from activities further removed than that.The court also rejected petitioners' claim that the Human Rights Act 1998 protects them. The court held: "Here, the petitioners are being protected from having any direct involvement with the procedure to which they object. Nothing they have to do as part of their duties terminates a woman's pregnancy. They are sufficiently removed from direct involvement as, it seems to me, to afford appropriate respect for and accommodation of their beliefs." Today's Scotsman reports on the decision.

Democratic-Leaning Catholic Group Issues 2012 Voter Guide

Catholics in Alliance for the Common Good-- described by USA Today as a group of Democratic-leaning Catholics-- yesterday released its 2012 Voter Guide. The Guide says in part:

In our country, a long series of social and political achievements give testimony to the thirst for justice and human dignity that are at the core of the Church’s social teaching....

Sadly, in America today, our nation’s political, social and economic debate has been assaulted in recent years by a different understanding of the human vocation, one in which there is no room for Christ and no room for Christian love. This different understanding, exemplified by the Tea Party, is rooted in explicitly anti-Christian teachings, it celebrates a hyper-individualism that specifically denies the possibility of a Common Good, and is dedicated to a form of social Darwinism in which the poor and vulnerable are despised and only the achievements and wealth of the strong merit political protection. In order to protect exorbitant tax cuts for the super-rich, some advocate terminating social programs that promote the poor and middle class, both at home and abroad, often in ways that are profoundly anti-life. Many have sought to deny the basic rights of workers to organize and collectively bargain. In the strongest possible terms, we denounce this new ideology as un-Christian, un-Catholic, and, indeed, as a perversion of America’s own best traditions.

Another House Committee Holds Hearings On Contraceptive Coverage Mandate

Another House committee has held hearings on the Obama administration's contraceptive mandate.  On Tuesday, the House Judiciary Committee held a hearing titled Executive Overreach: The HHS Mandate Versus Religious Liberty. The statements of the committee chairman, and of the four witnesses appearing before the committee are posted on the Judiciary Committee's website. Witnesses were Bishop William Lori; Asma Uddin from the Becket Fund; Dr. Linda Rosenstock, Dean of UCLA's School of Public Health; and Jeanne Monahan of the Family Research Council. In his opening statement, Committee Chairman Lamar Smith said in part: "The HHS mandate is a clear violation of religious freedom and a direct attack on the personally held views of many Americans. It is an erosion of religious freedoms." In mid-February, the House Committee on Oversight and Government Reform held a hearing on the same issue. (See prior posting.) Life News reports on Tuesday's hearing.

Baptist Church Sues Illinois Village Over Occupancy Permit

The Chicagoland Baptist Church on Tuesday filed a federal lawsuit against the city of Lansing, Illinois over barriers placed in the way of the issuance of an occupancy permit for the church to use a former VFW meeting hall that it purchased.  Christian Newswire reports on the filing. The complaint (full text) in Chicagoland Baptist Church v. Village of Lansing, Illinois, (ND IL, filed 2/28/2012), claims that: "Although the zoning of the Property at the time of purchase allowed a church as a permitted use as of right, the Church has been unable to hold worship services in the VFW meeting hall because the Village has informed the Church that as a precondition to obtaining an occupancy permit, it must install various cost-prohibitive, unnecessary, legally not require and wasteful systems to the building." The complaint sets out a series of actions by city officials that have thwarted the church's attempt to use the building for its worship. Relying on the 1st and 14th Amendments, as well as the Illinois Religious Freedom Restoration Act, the church seeks a declaratory judgment, an injunction and damages.

Tennessee High Court Allows Abuse Suit Against Diocese To Proceed

In Redwing v. Catholic Bishop for the Diocese of Memphis, (TN Sup. Ct., Feb. 27, 2012), the Tennessee Supreme Court, in a clergy sex abuse lawsuit, held that:

the ecclesiastical abstention doctrine does not necessarily immunize religious institutions from all claims for damages based on negligent hiring, supervision, or retention. Tennessee's courts may address these claims, as long as they can do so using neutral principles of law and can refrain from resolving religious disputes and from relying on religious doctrine....

It also held that plaintiff can pursue a breach of fiduciary duty claim against the diocese of Memphis "as long as the fiduciary relationship is not based on a religious duty or is not inextricably tied to a religious duty...."

The court also held that the fraudulent concealment doctrine may apply to toll the statute of limitations in the case:

the allegation that the Diocese misled Mr. Redwing and his family could be construed to mean that at some point, Mr. Redwing or his family asked the Diocese about its knowledge of Fr. Guthrie's conduct and that the Diocese's response misled them....  The allegations... could, if proven, provide a basis for a reasonable fact-finder to conclude that Mr. Redwing, lacking any basis for suspecting that the Diocese would deceive him, acted with reasonable diligence and, therefore, that he should not be held to have known that the Diocese's conduct caused him injury.

Laos Province Seizes Third Church To Be Used As School

Radio Free Asia reported yesterday that in Laos' southern province of Savannakhet, officials have for the third time since last September seized a Christian church building. All three of the seized churches will be reopened as schools. Authorities have also begun to require Christians who gather even in homes for Sunday services to obtain approval for each Sunday morning's gathering.

Hungarian Parliament Recognizes 18 More Faith Groups

Under Hungary's new Law on Churches passed last month, all churches other than those of 14 traditional faiths, must apply to Parliament if they want formal recognition. (See prior posting.) According to BosNewsLife, Hungary's Parliament on Monday formally recognized an additional 18 faith groups-- the United Methodist Church in Hungary; the Hungarian Pentecostal Church; St. Margaret’s Anglican Episcopal Church; the Transylvanian Congregation; the Seventh-day Adventist Church; the Coptic Orthodox Church of Hungary; the Apostolic Christian Church Nazarene; the Hungarian Society for Krishna Consciousness; the Free Church of the Salvation Army of Hungary; the Church of Jesus Christ of Latter-day Saints; Jehovah’s Witnesses; two Muslim denominations and five Buddhist religious communities. Formal recognition qualifies the church for tax-free status and government support, and allows a church to collect donations during services and perform pastoral work in jails and hospitals.

Texas Refuses To Reschedule State Basketball Tourney Times For Jewish Team

JTA reports that the Texas Association of Private and Parochial Schools ruled yesterday that it will not reschedule the state basketball semi-finals to accommodate Sabbath observance by the team of the Robert M. Beren Academy of Houston, a Jewish day school. Currently Beren is scheduled to play Dallas Covenant on Friday night in one of the two semifinal games, with the finals scheduled for 2 p.m. the next day. Beren's head of school, Rabbi Harry Sinoff, said: "Just as TAPPS doesn’t schedule games on Sunday in deference to Christian teams, we expected that as a Jewish team, there would be grounds for a scheduling change."

UPDATE: CNN reported March 1 that TAPPS, threatened with the filing of a lawsuit to obtain a TRO if they did not, has rescheduled the Friday playoffs for Friday afternoon. Also it will rescheduled the finals to 8 p.m. Saturday if the Beren Academy team ends up in them.

Dismissal of Harassment Charge Characterized By Critics As Acceptance of Sharia Defense

The Huffington Post reported yesterday on the storm of controversy around the Internet over a ruling by Pennsylvania state trial court judge Mark Martin dismissing a harassment charge that had been brought against a Muslim man who, during a Halloween parade, apparently attacked an atheist who was marching in the parade dressed as "Zombie Muhammad." According to the National Review, Ernest Perce, wore a “Zombie Mohammed” costume and pretended to walk among the dead, in the company of an associate who was the “Zombie Pope”.  Muslim immigrant Talag Elbayomy, attempted to pull the sign off of Perce. His attorney argued that Elbayomy thought it was a crime to insult the prophet Mohammed and acted to set an example for his children who were with him.

According to the National Review's transcript, the judge ruled from the bench:

I’ve got two sides of the story that are in conflict with each other.... I can’t believe that, if there was this kind of conflict going on in the middle of the street, that somebody didn’t step forward sooner to try and intervene....

But another part of the element [of the offense charged] is... “Was the defendant’s intent to harass, annoy or alarm — or was it his intent to try to have the offensive situation negated?”

If his intent was to harass, annoy or alarm, I think there would have been a little bit more of an altercation. Something more substantial as far as testimony going on that there was a conflict. Because there is not, it is not proven to me beyond a reasonable doubt that this defendant is guilty of harassment. Therefore I am going to dismiss the charge.

The furor over the decision however stems from other remarks by the judge chastising Perce for wearing the costume.  The court said in part:

I have a copy of the Koran here, and I would challenge you, sir, to show me where it says in the Koran that Mohammed arose and walked among the dead.... Before you start mocking someone else’s religion you may want to find out a little bit more about it. That makes you look like a doofus....

.... It’s unfortunate that some people use the First Amendment to deliberately provoke others. I don’t think that’s what our forefathers really intended. I think our forefathers intended that we use the First Amendment so that we can speak our mind, not to piss off other people and other cultures, which is what you did....

Islam is not just a religion, it’s their culture, their culture. It’s their very essence, their very being. They pray five times a day towards Mecca..... Then what you have done is you’ve completely trashed their essence, their being. 

The ruling is being described by some as the judge's accepting a shariah defense to violation of Pennsylvania law. Apparently Perce [corrected] has received hundreds of death threats since the ruling was handed down.

County Employees Required To Attend Constitution Course Tinged With Religion

In Carroll County, Maryland, questions have been raised about County Council last week requiring county employees to attend a seminar on the Maryland constitution led by a conservative Christian minister. The Baltimore Sun last week reported that the seminar was to be led by pastor David Whitney, speaking for the Institute on the Constitution. The Institute's description of its Maryland Constitution Course says: "As the student becomes familiar with the content of our State’s Constitution, it is our belief that the student will gain an understanding of the foundational principles and Biblical worldview of Maryland’s founders."

In India Protesters Demand Dropping Charges Against Religious Procession Displaying Swords

In the Indian city of Rajkot, a number of Hindu organizations, supported by both the Congress and BJP parties, have launched demonstrations to protest the arrest by local police of 37 people who displayed swords in a procession last week celebrating the Hindu festival of Maha Shivratri (The Night of Shiva). Express India today reports that the 37 were charged under the Indian Arms Act 1959.  The protesters say, however, that the procession, with its display of swords, is a 30-year old tradition for celebration of the religious festival. So far, local authorities have refused demands that the charges be withdrawn.

Santorum Elaborates His Church-State Views

Republican presidential contender Rick Santorum spoke at length about church-state issues yesterday on the ABC News program This Week (full transcript). Here is the relevant part of George Stephanopoulos' interview  with Santorum:

STEPHANOPOULOS: You have also spoken out about the issue of religion in politics, and early in the campaign, you talked about John F. Kennedy's famous speech to the Baptist ministers in Houston back in 1960. Here is what you had to say....

(BEGIN VIDEO CLIP) SANTORUM: Earlier (ph) in my political career, I had the opportunity to read the speech, and I almost threw up. You should read the speech. (END VIDEO CLIP)

STEPHANOPOULOS: That speech has been read, as you know, by millions of Americans. Its themes were echoed in part by Mitt Romney in the last campaign. Why did it make you throw up?

SANTORUM: Because the first line, first substantive line in the speech says, "I believe in America where the separation of church and state is absolute." I don't believe in an America where the separation of church and state is absolute. The idea that the church can have no influence or no involvement in the operation of the state is absolutely antithetical to the objectives and vision of our country.

This is the First Amendment. The First Amendment says the free exercise of religion. That means bringing everybody, people of faith and no faith, into the public square. Kennedy for the first time articulated the vision saying, no, faith is not allowed in the public square. I will keep it separate. Go on and read the speech. I will have nothing to do with faith. I won't consult with people of faith. It was an absolutist doctrine that was abhorrent (ph) at the time of 1960. And I went down to Houston, Texas 50 years almost to the day, and gave a speech and talked about how important it is for everybody to feel welcome in the public square. People of faith, people of no faith, and be able to bring their ideas, to bring their passions into the public square and have it out. James Madison— ...

... [T]o say that people of faith have no role in the public square? You bet that makes you throw up. What kind of country do we live that says only people of non-faith can come into the public square and make their case? That makes me throw up and it should make every American who is seen from the president, someone who is now trying to tell people of faith that you will do what the government says, we are going to impose our values on you, not that you can't come to the public square and argue against it, but now we're going to turn around and say we're going to impose our values from the government on people of faith, which of course is the next logical step when people of faith, at least according to John Kennedy, have no role in the public square.

STEPHANOPOULOS: We got a lot of questions on this on Facebook and Twitter, and I want to play one.... What should we do with all the non-Christians in this country? If I do not hold this belief, which I do not, how does he plan on representing me?

SANTORUM: Yes, I just said. I mean, that's the whole point that upset me about Kennedy's speech. Come into the public square. I want, you know, there are people I disagree with. Come to my town hall meetings, as people have done, and disagree with me and let's have a discussion. Let's air your ideas, let's bring them in, let's explain why you believe what you believe and what you think is best for the country. People of faith, people of no faith, people of different faith, that's what America is all about, it's bringing that diversity into and challenge of the different ideas that motivate people in our country. That's what makes America work. And what we're seeing, what we saw in Kennedy's speech is just the opposite, and that's what was upsetting about it.

Lawsuit Challenges Sukkah As Fire Hazard

The New York Post reported yesterday on a state court lawsuit filed by a couple who live on the 5th floor of Manhattan's Trump Place Condominiums against third-floor resident Zev Geller over  the Sukkah that Geller builds each year on his terrace for the Jewish holiday of Sukkot. Plaintiffs Thomas Tagliani and Leslie Lucas say the Sukkah is a fire hazard, particularly because Geller regularly barbecues next to it.  Geller says he has researched the city's fire code and found that Sukkahs are not regulated by it.

Recent Articles of Interest

From SSRN:

• Robert C. Blitt, Whither Secular Bear: The Russian Orthodox Church’s Strengthening Influence on Russia's Domestic and Foreign Policy, (Fides Et Libertas: The Journal of the International Religious Liberty Association, p. 89, 2011).
• Samuel James Rascoff, Establishing Official Islam? The Law and Strategy of Counter-Radicalization, (Stanford Law Review, Vol. 64, p. 125, 2012).
• Lyman P. Q. Johnson, Debarring Faithless Corporate and Religious Fiduciaries in Bankruptcy, (American Bankruptcy Institute Law Review, Vol. 19, p. 523, 2011).
• Inazu, John D., Virtual Assembly, (Cornell Law Review, Forthcoming).
• Jonah Perlin, Religion as a Conversation Starter: What Liberal Religious Political Advocates Add to the Debate About Religion’s Place in Legal and Political Discourse, (Georgetown Law Journal, Vol. 100, No. 1, p. 331, 2011).
• Hans-Martien Ten Napel Th.D., Finishing the Work Begun by the French Revolution: A Critical Analysis of the Dutch Supreme Court Judgment on the Political Reformed Party and Passive Female Suffrage, (European Public Law, Vol. 17, No. 1, 2011).
• Hans-Martien Ten Napel Th.D. and Florian H. Karim Theissen, The Judicial Protection of Religious Symbols in Europe’s Public Educational Institutions: Thank God for Canada and South Africa, (Muslim World Journal of Human Rights, Vol. VIII, No. 1, pp. 1-24, 2011).
• Mark Strasser, Funeral Protests, Privacy, and the Constitution: What is Next after Phelps?, (American University Law Review, Vol. 61, pp. 279-326, 2011).
• W. Wat Hopkins, Snyder v. Phelps and the Unfortunate Death of Intentional Infliction of Emotional Distress as a Speech-Based Tort, (January 25, 2012). 

From SmartCILP:

• Ken I. Kersch, Beyond Originalism: Conservative Declarationism and Constitutional Redemption, 71 Maryland Law Review 229-282 (2011).
• Samuel Levine, Rethinking Self-Incrimination, Voluntariness, and Coercion, Through a Perspective of Jewish Law and Legal Theory, 12 Journal of Law and Society 72-92 (2010 & 2011).
• Asifa Quraishi, What If Sharia Weren't the Enemy?: Rethinking International Women's Rights Advocacy on Islamic Law, 22 Columbia Journal of Gender & Law 173-249 (2011).
• Salma Taman, The Concept of Corporate Social Responsibility in Islamic Law, [Abstract], 21 Indiana International & Comparative Law Review 481-508 (2011).

Search Warrant For FLDS Compound Based On Hoax Tip Does Not Invalidate Conviction

A Texas state appeals court has refused to suppress evidence or quash an indictment of Lehi Barlow Jeffs, a member of the FLDS Church, who was charged with, and pleaded "no contest" to, sexually assaulting a child. In Jeffs v. State of Texas, (TX App., Feb. 24, 2012), the court rejected Jeffs complaint that the 2008 search warrant that allowed police to go onto the FLDS Yearning for Zion Ranch was based on a hoax telephone call. The woman caller claimed she was 16-years old, pregnant, abused and wanted to leave the ranch but was afraid to do so. Authorities thought the call was genuine. Among the claims rejected by the court was the contention that the widely publicized search of YFZ Ranch violated Jeffs religious freedom as protected by the Free Exercise clause and the Texas Religious Freedom Restoration Act. (See prior related posting.)

Court Says Evidentiary Hearing Needed On Christian Group's Use Of School Publicity Channels

In Owasso Kids for Christ v. Owasso Public Schools, 2012 U.S. Dist. LEXIS 23000 (ND OK, Feb. 23, 2012), Owassso Kids for Christ (OKFC), a Christian group that wants to share its religious message with students and parents, sued complaining that they were not give the same access as other community organizations for distributing flyers and posting information in the Owasso, Oklahoma public schools. The court held first that an individual plaintiff in the lawsuit, one of the founders of OKFC, has standing to bring a civil rights claim on behalf of OKFC which is an unincorporated association. Moving to the merits of plaintiffs' claim for a preliminary injunction, the court held that the fact the school system has issued a new viewpoint-neutral policy on access to the flyer distribution program, bulletin board, open house events, and for the posting of signs on School property does not automatically dispose of plaintiffs' free speech claim. There is at least a question of whether the new policy is in fact being applied in a viewpoint-neutral manner.

The court went on to hold that an evidentiary hearing will be required if the parties do not reach a settlement:

The evidence submitted by the parties is insufficient for the Court to determine whether the public address system, bulletin board, open house events, and the posting of signs on school property constitute designated public fora or nonpublic fora.... [Plaintiff] has also not shown ... that she was denied access to the speech fora because of the religious nature of her speech. The Court reserves factual findings on these issues, because the record is insufficient for the Court to determine [Plaintiff's] likelihood of success on the merits as to these speech fora.

Recent Prisoner Free Exercise Cases

In Low v. McGinness, 2012 U.S. Dist. LEXIS 20428 (ED CA, Feb. 16, 2012), a California federal magistrate judge recommended dismissing a claim by a Muslim  prisoner that while he was a pre-trial detainee his request for a copy of the Qur'an and Islamic prayer literature was denied. The magistrate recommended that plaintiff's claim that he was denied a halal diet be dismissed, but with an opportunity to amend.

In Lindsay v. Earlston, 2012 U.S. Dist. LEXIS 20627 (MD PA, Feb. 17, 2012), a Pennsylvania federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 20720, Jan. 13, 2012) and dismissed free exercise and RLUIPA claims by a Nation of Islam inmate who complained, among other things, of disparaging remarks made about African-American inmates with dreadlocks; a one-time mistaken refusal to show a video of Minister Louis Farrakhan; refusal to videotape NOI meetings for airing on the institutional channel; and refusal for NOI inmates to participate in a fast and feast separate from other Muslim inmates.

Miles v. Moore, 2012 U.S. Dist. LEXIS 21641 (ED VA, Feb. 21, 2012) is a case on remand from the 4th Circuit which ordered the district court to evaluate whether a prison policy limiting the periods during which an inmate could be added to a pass list to attend religious services is the least restrictive means to further a compelling governmental interest. The district court ordered defendants to file a motion setting out their position on this issue and also denied a motion to disqualify the state attorney general's office from representing the prison chaplain.

In Evans v. Somers, 2012 U.S. Dist. LEXIS 20890 (ED NC, Feb. 17, 2012), a North Carolina federal district court dismissed an inmate's challenge to a disciplinary action against him after he was observed nude in his cell.  Plaintiff argued that he was nude because he was  performing Ghusl, ceremonial washing before Jum'ah prayer. However he was observed nude outside the time period permitted by prison regulations for performing Ghusl.

In Vigil v. Colorado Department of Corrections, 2012 U.S. Dist. LEXIS 21090 (D CO, Feb. 21, 2012) a Colorado federal district court adopted in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 20934, Jan. 24, 2012) and refused to dismiss an inmate's claim that RLUIPA requires recognition of his "Judeo-Christianity" as a faith group and that he should be permitted to participate in accompanying Jewish and Christian practices, including Communion.

In Gee v. Fischer, 2012 U.S. Dist. LEXIS 21279 (ND NY, Feb. 21, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 21280, Jan. 23, 2012) and refused to dismiss an inmate's claim that the prison system's hiring only of Sunni Muslim clergy, and its failure to hire Shi'i clergy and to provide Shi'i Friday Prayer Services, violate his free exercise and equal protection rights.

In Milhouse v. Bledsoe, 2012 U.S. Dist. LEXIS 22704 (MD PA, Feb. 23, 2012), a Pennsylvania federal district court dismissed a Muslim inmate's claim that his free exercise rights were infringed when special management unit inmates were precluded from attending or listening to group religious services, and when components of the special meal at the end of Ramadan were served to non-Muslim inmates as well, thus detracting from the special nature of the meal.

In Fard v. Arpaio, 2012 U.S. Dist. LEXIS 22919 (D AZ, Feb. 22, 2012), an Arizona federal district court  dismissed, with leave to amend, an inmate's claim that his free exercise rights were violated when, during a morning check, a detention officer spoke loudly to him and threatened him while he was praying next to his bed.

In Abdul-Mateen v. Phipps, 2012 U.S. Dist. LEXIS 23216 (WD VA, Feb. 22, 2012), a Virginia federal district court permitted a Muslim inmate to move ahead with various of his claims that his rights under RLUIPA were infringed when officials refused to change his medication schedule to make it consistent with rules relating to the Ramadan fast.

Break-Away Churches Want Court To Reconsider Personal Property Ruling

Last month, a Virginia court held that all the property of seven break-away Episcopal congregations belong to The Episcopal Church's Diocese of Virginia. (See prior posting.) While the court's opinion devoted most of its discussion to the real property of the churches, the decision also held that personal property of the churches follows disposition of the real property.  On Feb. 22, the break-away congregations filed a motion (full text) seeking reconsideration of the court's ruling on personal property-- In re: Multicircuit Episcopal Church Litigation, (Cnty. Cir. Ct., motion filed 2/22/2012). The churches contend that the court's ruling violates rights and the intentions of donors to the congregations. Fairfax City Patch reports on the filing of the motion.

District Judge Defies 2nd Circuit On Scope of Injunction Permitting Churches To Use School Buildings

The tug-of-war between New York federal district court Judge Loretta Preska and the Second Circuit over use of New York City school buildings by churches has gotten more complicated. As previously reported, on Feb. 16 Judge Preska issued a temporary restraining order against the New York City Board of Education in Bronx Household of Faith v. New York City Board of Education, a suit that most observers had assumed was concluded. Even though the 2nd Circuit had upheld the Board's policy of excluding churches from using school buildings after hours for worship services, Judge Preska said that that the 2nd Circuit's decision only dealt with the free speech issue, and that Bronx Household of Faith still had a free exercise claim on which it was likely to succeed. The next day, the 2nd Circuit issued an order limiting the district court's TRO only to enforcement of the regulations against Bronx Household of Faith. (See prior posting.) The court said: "The district court’s finding that Bronx Household has shown likelihood of success on the merits of its case does not justify enjoining the Board from enforcing its order against non-parties."  Both Judge Preska and the 2nd Circuit promised that their orders would be followed up by full opinions.

Yesterday Judge Preska issued the promised opinion (51 pages). In Bronx Household of Faith v. Board of Education of the City of New York, (SD NY, Feb. 24, 2012), Judge Preska enjoined the Board of Education "from enforcing Ch. Reg. D-180 § I.Q so as to deny Plaintiffs' application or the application of any similarly-situated individual or entity to rent space in the Board's public schools for morning meetings that include religious worship."  In a footnote, Judge Preska explained:

The Court is, of course, aware of the Court of Appeals' order applying the temporary restraining order only to named Plaintiff Bronx Household of Faith. With respect, however, if a rule is unconstitutional, it is unconstitutional as to all similarly-situated parties. Defendants obviously recognized this in permitting many non-party congregations to meet during nonschool hours during the pendency of the prior injunctions. Also, the Court of Appeals made no suggestion in any of the three full opinions it issued heretofore that the prior injunctions extended only to the named Plaintiffs. Thus, with respect, this order extends to the Bronx Household of Faith and, in addition, to any similarly-situated party.

In explaining why Bronx Household of Faith is likely to succeed on the merits, Judge Preska concluded that the Board's regulation is not a neutral rule of general applicability because it targets religious conduct. This triggers strict scrutiny-- a standard the court found was not met.  The court held that allowing religious services during non-school hours does not violate the Establishment Clause.  She also found that the rule excessively entangles the government in religion because of the way in which the Board of Education investigates whether a church will be engaging in "religious worship services".

New York City plans an immediate appeal of Judge Preska's decision. (Business Week).

Suit Challenges City Council's Invocation Policy

A lawsuit has been filed against the city of Ontario, California challenging city council's practice of opening its sessions with prayer.  The complaint (full text) in Inland Oversight Committee v. City of Ontario, (CD CA, filed 2/6/2012), alleges that more than 75% of the invocations were offered in the name of Jesus, while less than 10% were offered by individuals of non-Christian faiths. The suit claims that this violates the establishment clause as well as provisions of the California constitution. Friday's Inland Valley Daily Bulletin reports on the lawsuit.

Maryland Legislature Passes Same-Sex Marriage Bill; Governor Will Sign It

WBAL-TV reports that the Maryland legislature yesterday gave final passage to House Bill 438, the Civil Marriage Protection Act, which legalizes same-sex marriage in Maryland. A statement issued by the Governor immediately after the bill's passage made clear that he will sign the bill. The state Senate passed the bill yesterday by a vote of 25-22, following passage last week in the House of Delegates by a vote of 72-67. When effective, this will make Maryland the 8th state to recognize same-sex marriage.

The bill provides that clergy may not be required to perform marriage ceremonies that violate their free exercise rights. It also provides a religious organization, or any nonprofit institution supervised or controlled by a religion organization, "may not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual ... related to:  (1) the solemnization of a marriage or celebration of a marriage that is in violation of the entity’s religious beliefs; or (2) the promotion of marriage through any social or religious programs or services, in violation of the entity’s religious beliefs, unless State or federal funds are received for that specific program or service." The bill also contains a non-severability clause, calling for invalidation of the entire law if any part or application of it is found unconstitutional.

In the hard-fought debate in the legislature, opponents raised numerous issues, including a concern that the bill would threaten Mothers Day and Fathers Day.  Opponents promise to seek a referendum on the bill and placed language in it attempting to assure that it would not become effective until after a referendum on it.

U.S. Officials Condemn Iran's Sentence of Pastor For Apostasy

CNN reports that the White House and the State Department have both condemned the death sentence that has been handed down by an Iranian court against Pastor Youcef Nadarkhani, an Iranian Christian charged with apostasy for leaving Islam. A statement (full text) issued by the White House press secretary yesterday reads in part:

The United States condemns in the strongest possible terms reports that Iranian authorities’ reaffirmed a death sentence for Iranian Pastor Youcef Nadarkhani for the sole reason of his refusal to recant his Christian faith.  This action is yet another shocking breach of Iran’s international obligations, its own constitution, and stated religious values.

In its release (full text), the State Department, calling for Nadarkhani's immediate release, said in part:

The United States is deeply concerned by reports that a provincial court has renewed the execution order for Iranian Pastor Youcef Nadarkhani. Mr. Nadarkhani is facing a death sentence on charges of apostasy and has refused to recant his Christian faith. Such government persecution for simply following one’s faith is common in Iran, where followers of many religious traditions face harsh treatment and severe violations of their religious freedom. We have also witnessed a dramatic increase in the arrest of adherents to the Baha’i Faith recently, as well as an increase in repression of freedom of expression in all forms.

Court Upholds City Council Invocation Policy

In Atheists of Florida, Inc. v. City of Lakeland, Florida, (MD FL, Feb 22, 2012), a Florida federal district court rejected challenges to the invocation policy of the Lakeland City Commission. Before 2010, individuals from a congregation list that included only Christian congregations were invited to deliver the invocation. Beginning in 2010, the policy was changed to expand the congregation list to include all congregations with a presence in the community, including several non-Christian congregations. The court said that legislative prayer, including sectarian prayer, can be constitutionally permissible under the type of selection process which Lakeland had after 2010. The court also rejected challenges to the pre-2010 policy. The Lakeland Ledger reports on the decision. The Lakeland Ledger reports on the decision.

7 States Sue HHS Over Contraceptive Coverage Mandate

Yesterday saw still another lawsuit challenging the Obama administration's mandate requiring most health insurance policies to cover contraceptive services.  This suit was filed by seven state attorneys-general (Nebraska, South Carolina, Michigan, Texas, Florida, Ohio and Oklahoma) along with several Catholic institutions and individuals.  The complaint (full text) in State of Nebraska v. U.S. Department of Health and Human Services, (D NE, filed 2/23/2012) alleges that the mandate violaes the Religious Freedom Restoration Act as well as constitutionally protected freedom of speech, association and free exercise of religion. The section of the complaint relating to the interest the attorneys-general have in bringing the lawsuit interestingly sets forth different allegations of interest for different states. It asserts that the Nebraska and Michigan attorneys-general are bringing the lawsuit on behalf of the people of their state.  As to the other attorneys general, the complaint alleges only that they are bringing the lawsuit on behalf of each of their sovereign states. Nebraska's Attorney General issued a press release announcing the lawsuit.

DOMA Held Unconstitutional By Federal District Court

A California federal district court has held that the Defense of Marriage Act is unconstitutional.  In Golinski v. United States Office of Personnel Management, (ND CA, Feb. 22, 2012), the court held that the equal protection rights of a female staff attorney employed by the U.S. 9th Circuit Court of Appeals were infringed when the Administrative Office of the U.S. Courts refused to process her application to add her same-sex spouse to her family coverage health insurance plan. The court concluded that heightened scrutiny should apply when reviewing statutory classifications based on sexual orientation. It added, however, that even under rational basis review, the statute fails.

In applying heightened scrutiny, the court rejected four justifications identified by Congress in enacting DOMA: (1) encouraging responsible procreation and child-rearing; (2) defending and nurturing the institution of traditional, heterosexual marriage; (3) defending traditional notions of morality; and (4) preserving scarce government resources. In applying rational basis review, the court also examined three other justifications that Congress might have had:  (1) preserving the status quo in the federal definition of marriage while waiting for the states to tinker with the traditional definition of marriage; (2) an interest in remaining cautious in an area of so much social divisiveness; and (3) avoiding the inconsistency of eligibility for federal benefits turning on the vagaries of state law. The San Jose Mercury News reports on the decision. [Thanks to Volokh Conspiracy for the lead.]

Scientology Australia Asks For Minimum Wage Exemption For Volunteers

In Australia, the Church of Scientology has filed a petition with Fair Work Australia, the national workplace relations tribunal, seeking an exemption from the minimum wage law for church volunteers.  A report from the Daily Telegraph quotes Scientology's public affairs director who says that requiring non-profit organizations to pay minimum wage levels is a violation of human rights. The Telegraph also reports:

The Church of Scientology was investigated by the Fair Work Ombudsman last year for claims some adherents worked up to 72 hours without a break and for as little as $10 a week. However, it was deemed that some of these workers were volunteers.

Recall Petitions Invalidated Because Church Improperly Promoted Them

In Cook v. Tom Brown Ministries, (TX App., Feb. 17, 2012), a Texas state appeals court ordered the decertification of recall petitions that were circulated by Word of Life Church (WOL) in an effort to recall the mayor of El Paso and two city council members.The effort was undertaken after the mayor and the two council members supported restoring health care benefits that had been taken from some city employees by the Traditional Family Values Ordinance that limited benefits to city employees, their legal spouse and dependent children. (See prior posting.)  The court found that WOL had violated Texas election rules:

WOL Church, as a corporation, through the use of its website, promoted the circulation of recall petitions, created a portal whereby volunteers could register through WOL Church to circulate petitions, provided the facility and personnel to assist in the signing and circulation of the recall petitions, and notified the public that recall petitions were available for signing at WOL Church. The evidence establishes that WOL Church made campaign contributions from its own property in connection with a measure-only recall election without properly making the contributions to a measure-only committee ... and that WOL Church, a corporation, made a political contribution in connection with a recall election, including the circulation and submission of petitions to call an election, and failed to make such contribution to a political committee in violation of Sections 253.096 and 253.094(b) of the Election Code.

The court also held that the Texas restrictions on corporate involvement in elections is not inconsistent with the U.S. Supreme Court's Citizens United decision. The El Paso Times last week reported on the decision.

Islamic School Sues Over Rezoning Denial

Ann Arbor.com reports that the Michigan Islamic Academy has filed a federal lawsuit against the Pittsfield Township, Michigan Board of Trustees challenging their denial of zoning changes needed for the Academy to build a new school to replace its current overcrowded facility.  The lawsuit, alleging violations of RLUIPA as well as the 1st and 14th Amendments, claims that the township used fabricated reasons to deny the school's rezoning request. It charges religious discrimination that imposes a substantial burden on the free exercise rights of the school and its students.

Copyright Infringement Claims Against Joel Osteen Dismissed, But With Leave To Amend

In Yesh Music v. Lakewood Church, (SD TX, Feb. 14, 2012), the composers of the song "Signaling Through the Flame" sued televangelist Joel Osteen, his wife and their Lakewood Church for copyright infringement, claiming that they continued to use the song to promote the Osteen's DVD "Supernatural" after the expiration of a one-year licensing agreement. Christian Post reports that "Supernatural" features Osteen speaking about God's plan for each individual. The court held that the Licensing Agreement provided perpetual-use Internet rights only for productions created prior to expiration of the Agreement. However the court dismissed claims against the Osteens for direct or contributory infringement because plaintiffs failed to allege that they had a financial stake in or personally supervised the infringing activity, but gave them 14 days to amend their complaint to cure these pleading problems. The court also rejected defendants' claim that allegations of infringement outside the United States should be dismissed. The complaint alleged that the song was broadcast in ads throughout the United States and in certain foreign countries, and in global broadcasts of church services.  But the court concluded that plaintiffs properly state a claim for extraterritorial infringement because the infringing acts were initiated in the United States.

Chabad Group Loses Challenge To Zoning Denial

In Chabad Lubavitch of Litchfield County, Inc. v. Borough of Lichtfield, Connecticut, 2012 U.S. Dist. LEXIS 20758 (D CT, Feb. 17, 2012), a Connecticut federal district court dismissed constitutional challenges and challenges under the Religious Land Use and Institutionalized Persons Act brought by an Orthodox Jewish group to zoning rulings that prevented it from expanding a building in Lichtfield's Historic District.  Chabad wanted to use the expanded building for religious purposes. Lichtfield County Times reports on the decision.

Washington Pharmacy Board Rules Violate Free Exercise Rights of Objecting Pharmacists

Yesterday in Stormans, Incorporated v. Selecky, (WD WA, Feb. 22, 2012), a Washington federal district court held unconstitutional the enforcement of rules of the Washington State Pharmacy Board that require pharmacies and pharmacists to dispense emergency contraception even when doing so violates a pharmacist's religious beliefs. At issue are Plan B and ella that prevent implantation of a fertilized egg in the uterus. In a 97-page Findings of Fact and Conclusions of Law, a 48-page Opinion, and a Permanent Injunction order, the court held that the rules, as applied to those with religious objections, violate the Free Exercise and Equal Protection clauses. More specifically, the court held:

The Board of Pharmacy’s 2007 rules are not neutral, and they are not generally applicable. They were designed instead to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted. The rules are unconstitutional as applied to Plaintiffs.

The court enjoined the state from enforcing the rules "against Plaintiffs, or against the pharmacies in which Plaintiffs have an ownership or managerial interest, or where Plaintiffs are employed, insofar as those Regulations would prohibit Plaintiffs from declining based on their religious beliefs to stock or deliver Plan B or ella and instead providing a referral to a nearby pharmacy or other location that provides Plan B or ella." The Becket Fund issued a press release announcing the decision. (See prior related posting.)

Court Says Now Scientology Church Can Pursue Discrimination In Zoning Claim

In Church of Scientology of Georgia v. City of Sandy Springs, 2012 U.S. Dist. LEXIS 19087 (ND GA, Feb. 10. 2012), a Georgia federal district court granted a motion for reconsideration of its earlier zoning decision (see prior posting). The earlier decision held that triable issues of fact remain on plaintiff's First Amendment claims and its RLUIPA claim that the city's action posed a substantial burden on its religious exercise, but dismissed its RLUIPA discrimination, equal terms and exclusion claims. In its new opinion, the court held that it now believes a question of fact exists as to whether Sandy Springs discriminated against the Church of Scientology on the basis of its religious denomination when, in granting conditional approval of its rezoning application, it refused to allow expansion of the church's existing building based on a lack of sufficient on-site parking. In an amended opinion, the court said:

Based on the entirety of the evidence in the record as more clearly demonstrated by Plaintiff in its motion for reconsideration, in conjunction with new, unchallenged evidence provided in the briefing on ripeness that Plaintiff originally sought a parking variance but was informed by a member of the City's planning staff that no variance was needed because the Church met the City's minimum parking requirement, the Court finds that Plaintiff has now sufficiently demonstrated evidence from which a possible inference of discrimination could be made.

Israel's High Court Strikes Down Law On Deferring Service For Yeshiva Students

Jerusalem Post reports that Israel's High Court of Justice yesterday struck down Israel's "Tal" law-- the "Deferral of Service for Yeshiva Students for Whom Torah Is Their Profession Law."  The law was passed by the Knesset in 2002 and requires renewal every 5 years. The current lawsuit was filed in 2007 by the Movement for Quality Government along with other groups, challenging the small number of haredi men who have enlisted under the law. Yesterday's holding means that the Knesset will not be able to renew the law in its present form this year. The law was designed to encourage haredi (strictly Orthodox) men to enlist in the armed forces. In 2011, 1282 of the men enlisted in the IDF and 1079 in a national service program. In a 6-3 decision, the Court held that the law conflicts with the provision in Israel's Basic Law: Human Dignity and Liberty, Sec. 8 that provides "There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required." The majority apparently agreed with petitioners' argument that the law does not work because it permits too many yeshiva students to avoid mandatory military service, and creates inequality by transferring the burden of serving to other groups in society.

Two dissenters argued that the government should be given more time to make the law work. A third dissenter said that there is no basis for judicial review of a law granting benefits to a minority group. Prime Minister Benjamin Netanyahu said that a revised version of the law will be forumulated.

En Banc Review By 9th Circuit Sought In Proposition 8 Invalidation

A petition (full text) for a rehearing en banc was filed with the U.S. 9th Circuit Court of Appeals yesterday in Perry v. Brown. In the case, a 3-judge panel of the 9th Circuit (by a 2-1 vote) struck down California's Proposition 8 that eliminated the right for same-sex couples to marry. (See prior posting.) AP reports on the rehearing petition. In a separate motion (full text) filed yesterday, Imperial County Clerk, Chuck Storey, sought again to intervene as a defendant in the case.

Cert. Denied In Claim Challenging Teacher's Anti-Religious Comment

Yesterday the U.S. Supreme Court denied certiorari in C.F. v. Corbett, (Docket No. 11-759). In the case, former high school student Chad Farnan claimed that in his sophomore Advanced Placement European History class, teacher James Corbett violated the Establishment clause by making statements that were hostile toward religion in general and Christianity in particular. The 9th Circuit dismissed the case on mootness and qualified immunity grounds. (See prior posting.) The Orange County Register reports on the Supreme Court's refusal to review the decision.

Afghans Protest Inadvertent Military Burning of Qur'ans

Furious demonstrations broke out in Afghanistan yesterday as reports circulated of NATO troops at Bagram Air Base setting fire to bags containing copies of the Qur'an and books of Qur'anic interpretation.  The New York Times and CNN report in depth on the events. On Monday night, a dump truck escorted by a military vehicle drove up to a landfill at Bagram and began unloading bags of books into a pit for incineration.  Afghans working at the site saw what was happening and objected. The soldiers drew back, but two bags already thrown into the pit had begun to burn, and they were pulled out by Afghans with half-burned Qur'ans in them.  The books came from the Detention Facility in Parwan which houses insurgents captured by Americans in raids.  ISAF Commander General John R. Allen said: "We are thoroughly investigating the incident and we are taking steps to ensure this does not ever happen again. I assure you … I promise you … this was NOT intentional in any way."  One official said that the materials were removed from a library at Parwan because of "extremist inscriptions" communicated on them. Secretary of Defense Leon Pantetta also apologized, while ISAF announced that coalition personnel will be trained in proper handling of religious materials by March 3. At the White House daily press briefing (full text), press secretary Jay Carney said in part:

This was a deeply unfortunate incident that does not reflect the great respect our military has for the religious practices of the Afghan people.  Our military leaders have apologized, as I mentioned, for these unintentional actions, and ISAF is undertaking an investigation to understand what happened and to ensure that steps are taken so that incidents like this do not happen again.

UPDATE: CNN reports Wednesday that at least 5 people have been killed and 20 wounded as police respond to protests in Parwan and Nangarhar provinces. The U.S. embassy in Kabul is in lock down for a second day. Americans were asked to avoid the area near Camp Phoenix (near Kabul International Airport) where violent demonstrations were also taking place.

Two New Challenges To Obama's Contraceptive Coverage Mandate Filed

Two more lawsuits, brought by religiously-affiliated universities, were filed yesterday to challenge the constitutionality of the Obama administration mandate that requires contraceptive services to be covered by most health insurance policies.  A press release from the Becket Fund reports that a suit was filed in federal court yesterday by Florida’s Ave Maria University.  The complaint (full text) in Ave Maria University v. Sebelius, (MD FL, filed 2/21/2012), claims that enforcing the mandate against Ave Maria would violate the Religious Freedom Restoration Act, the free exercise, free speech and establishment clauses of the First Amendment, as well as the Administrative Procedure Act. (See prior related posting.)

UPDATE: Ave Maria's president is Jim Towey, former director of George W. Bush’s Office of Faith-Based & Community Initiatives. The Daily Caller reports on Towey's conference call with reporters announcing the lawsuit.

Meanwhile, yesterday the Presbyterian-affiliated Geneva College in Beaver Falls, Pennsylvania filed a similar lawsuit.  The complaint (full text) in Geneva College v. Sebelius, (WD PA, filed 2/21/2012) indicates that Geneva College's objections are limited to being required to cover contraceptives (such as Plan B and ella) that it considers to be abortifacients. However its lawsuit seeks a broad order barring application of the mandate in a way that substantially burdens anyone's religious beliefs.  The Pittsburgh Post-Gazette reports on the lawsuit.

Religious Groups Urge Candidates Not To Use Religion Inappropriately

Fourteen religious groups-- Christian, Muslim, Jewish, Hindu and Sikh-- today urged political candidates to avoid inappropriate emphasis on religious belief in the upcoming campaign season. (Press release.) In a document titled Religion in Political Campaigns -- An Interfaith Statement of Principles, drafted by the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty and the Interfaith Alliance, the 14 groups said:

Candidates for public office ... should feel comfortable explaining their religious convictions to voters, commenting about their own religious beliefs, explaining, if they wish to do so, how those beliefs shape their policy perspectives, and how they would balance the principles of their faith with their obligation to defend the Constitution if the two ever came into conflict. There is a point, however, where an emphasis on religion in a political campaign becomes inappropriate and even unsettling in a religiously diverse society such as ours.  Appealing to voters along religious lines is divisive. It is contrary to the American ideal of including all Americans in the political process, regardless of whether they are members of large and powerful religious groups, religious minorities, or subscribe to no faith tradition.

[Thanks to Michael Lieberman and to Jeff Huett for the lead.] 

FBI Removes Inaccurate Training Material On Muslims

The Detroit Free Press reported yesterday that the FBI has removed some 700 documents and 300 presentations that stereotyped Islam or were factually inaccurate. The action came after complaints from Muslim and Arab-American groups. The FBI plans to announce in the near future its procedures for vetting training material for accuracy. [Thanks to Blog from the Capital for the lead.]

British Employment Appeal Tribunal Holds Sikh Priest Must Be Paid Minimum Wage

In Singh v. Members of the Management Committee of the Bristol Sikh Temple, (EAT, Feb. 14, 2012), Britain's Employment Appeal Tribunal held that a former Priest at a Sikh Temple was a "worker" within section 54(3)(b) of the National Minimum Wage Act 1998.  This entitled him to the minimum wage, and not merely the amounts he had been receiving from contributions by members of the congregation. Reporting on the decision, today's London Mail says: "The decision means religious organisations, charities and groups which depend on voluntary help are at risk of having to pay a salary to thousands of people they believed were giving their help free."

Greek Orthodox Patriarch Meets With Commission Drafting Turkey's New Constitution

Hurriyet Daily News reported yesterday that in Turkey, Greek Orthodox Patriarch Bartholomew made an historic closed-door presentation to the Constitution Conciliation Commission which is drafting a new constitution for Turkey. The Patriarch said that this was "the first official invitation to non-Muslim minorities in Republican history." In an 18-page paper that he left with the Commission, the Patriarch called for equal treatment for non-Muslim minorities, including an equal share of public funds for religious services and education. Another member of the Patriarch's delegation urged the Commission to make reference in the new constitution to the 1924 Lausanne Treaty that  guarantees the rights of Turkey’s Greek Orthodox, Jewish and Armenian communities. He also urged the Commission to specifically define "hate crimes". The head of the Syriac Mor Gabriel Monastery Foundation also met with the Commission.

State Bills Challenge Federal Mandate On Contraceptive Coverage

AP reports today that bills have recently been introduced into state legislatures in Idaho, Missouri and Arizona that would allow insurance companies or businesses, religious or secular, to refuse to cover contraception, abortion and sterilization in their health insurance policies if they have moral objections to offering the coverage. The bills attempt to challenge the Obama administration's recent mandate regarding coverage of contraceptive services by health care plans. It is likely that the federal government would sue to block effectiveness of the state laws if they pass.

Recent Articles of Interest

From SSRN:

• Melissa Crouch, Indonesia's Blasphemy Law: Bleak Outlook for Minority Religions, (Asia Pacific Bulletin (East-West Center), No. 146, Jan. 26, 2012).
• Ryan Max Rowberry and John Khalil, A Brief History of Coptic Personal Status Law, (Berkeley Journal of Middle Eastern & Islamic Law, Vol. 3, No. 1, p. 81, 2010).
• Ioana Cismas, Introductory Note to the Statute of the OIC Independent Permanent Human Rights Commission, (International Legal Materials, Vol. 5, No. 6, pp. 1148-1160, 2011).
• Katherine Jacob, Divine Diversion: Divine Retribution as Dispute Resolution and the Norman Invasion of Ireland, (November 30, 2011).
• Carolyn Anne McConnell, What's in a Name? The Case for the Disestablishment of Marriage, (February 17, 2012).
• Mae Kuykendall and Adam Candeub, Symposium Overview: Perspectives on Innovative Marriage Procedure, (Michigan State Law Review, Vol. 2011, p. 1, 2011).
• Muhammad Elsayed, Contracting into Religious Law: Anti-Sharia Enactments and the Free Exercise Clause, (George Mason Law Review, Vol. 20, No. 3, 2012).

Recent Prisoner Free Exercise Cases

In McKennie v. Texas Department of Criminal Justice, 2012 U.S. Dist. LEXIS 16924 (WD TX, Feb. 10, 2012), a Texas federal district court held that the rights of a Hebrew-Israelite inmate under RLUIPA were not violated  when he was not permitted to congregate on the Sabbath with his fellow believers without a religious volunteer present and was not provided a vegan diet.

In Mathis v. Manza, 2012 U.S. Dist. LEXIS 17147 (WD PA, Feb.9, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 17148, Jan 18, 2012) and dismissed equal protection and Establishment Clause claims brought by a non-religious inmate in a jail's restricted housing unit who complained that religious inmates are allowed access to religious texts and jail visits from religious advisers, while he is not allowed access to non-religious texts and extra visits.

In Delgado v. Ballard, 2012 U.S. Dist. LEXIS 16807 (SD WV, Feb. 10, 2012), a West Virginia federal district court rejected RLUIPA. equal protection and retaliation claims by an inmate who adhered to a Taino/Arawak belief system. Plaintiff complained about hair length restrictions, restrictions on tobacco use, restrictions on his use of music during religious observances and interference with his mail. The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 153093, Oct. 6, 2011.

In Santos v. Allen, 2012 U.S. Dist. LEXIS 17206 (D NV, Feb. 13, 2012), a Nevada federal district court held that an inmate had no free exercise claim based on the loss or destruction of a mail-order Passover meal. However the court permitted another free exercise claim, not described in the opinion, to proceed.

In Hallman v. Metts, 2012 U.S. Dist. LEXIS 17393 (D SC, Feb. 13, 2012), a South Carolina federal district court rejected a Muslim inmate's claims that he was not provided adequate and appropriate meals during Ramadan, that he was not provided adequate privacy in communal rest rooms, that n Imam was provided and that he was prevented from praying with other Muslims. The magistrate's recommendation in the case is at 2012 U.S. Dist. LEXIS 17390, Jan. 19, 2912.

In Shabazz v. Virginia Department of Corrections, 2012 U.S. Dist. LEXIS 17746 (ED VA, Feb. 13, 2012), a Virginia federal district court ordered various defendants to file a memo explaining their position on equal protection, free exercise and RLUIPA claims of a Nation of Islam plaintiff who wished to purchase Nation of Islam non-music CDs directly from The Final Call. Prison authorities required him to go through the Faith Review Committee for approval to add them to the catalog of the prison's distributor.

In Murden v. DeRose, 2012 U.S. Dist. LEXIS 19112 (MD PA, Feb. 15, 2012), a Pennsylvania federal district court rejected an inmate's claim that his free exercise rights were infringed when, his copy a Qur'an was confiscated for 16 days in a general cleaning of cell contents undertaken in response to a riot.

In Mujahid v. Cunningham, 2012 U.S. Dist. LEXIS 19773 (WD WA, Feb. 16, 2912), a Washington federal district court dismissed an inmate's complaint that unidentified mail room staff trashed or rejected several religious books, magazines and publications. The magistrate's recommendation is at 2011 U.S. Dist. LEXIS 153281, Nov. 8, 2011.

In Barbosa-Orona v. Flores-Dasta, 2012 U.S. Dist. LEXIS 19951 (D PR, Feb. 15, 2012), a Puerto Rico federal district court held that a Catholic inmate who claims he had made a religious vow not to cut his hair had failed to exhaust his administrative remedies before suing over the forced cutting of his hair by prison guards.

In Palermo v. Wrenn, 2012 U.S. Dist. LEXIS 19154 (D NH, Feb. 8, 2012), a New Hampshire federal magistrate judge recommended permitting an inmate to move ahead with his free exercise, RLUIPA and equal protection claims against two defendants. Plaintiff alleged that he was denied access to Asatrú religious services, religious items, literature, and a religious diet on the basis that Asatrú is not a religion, but a white supremacist group.

In Vazquez v. Waln, 2012 U.S. Dist. LEXIS 18186 (D NC, Feb. 14, 2012), a North Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 153278, Nov. 28, 2011) and permitted an inmate to move ahead with his free exercise and RLUIPA claims that a correctional officer
interfered with his religious practices by seizing his Religious Box which he needed to engage in prayers. However the court rejected his due process challenge to the seizure.

2nd Circuit: TRO On Church Use of Schools Only Applies To One Church

As previously reported, on Thursday a New York federal district court issued a temporary restraining order in the long-running case of Bronx Household of Faith v. New York City Board of Education, temporarily barring the Board of Education from enforcing a Chancellor's Regulation precluding use of school buildings for religious worship. Yesterday, the U.S. 2nd Circuit Court of Appeals issued an order (full text) in the case, clarifying that the TRO applies only to evicting Bronx Household of Faith, and does not apply to protect other churches that are not parties to the litigation. However the Circuit Court refused to stay the TRO as it applies to Bronx Household of Faith. Reporting on the 2nd Circuit order, New York Law Journal says that the city and some 50 religious groups had understood the TRO to apply to churches using any public school, and a number of churches were scrambling to get permits for this Sunday.

Canada's Supreme Court Upholds Quebec's Ethics and Religious Culture Program In Schools

In S.L. v. Commission scolaire des Chênes, (Canada Sup. Ct., Feb. 17, 2012), the Supreme Court of Canada rejected a religious liberty challenge to the mandatory Ethics and Religious Culture Program that in 2008 replaced Catholic and Protestant programs of religious and moral instruction. Two parents challenged the program, arguing that it interfered with their obligation to pass on the teachings of the Catholic religion to their children. Justice Deschamps' opinion for 7 justices held:

Parents are free to pass their personal beliefs on to their children if they so wish.  However, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society.  The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education.  Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(a) of the Canadian Charter and of s. 3 of the Quebec Charter.

A concurring opinion by Justices LeBel and Fish agreed that on the current record, the program should not be struck down. They said, however, that once the program is full implemented so that the actual content and approach are known, it may be that a valid challenge will be available.

One News Now reports on the decision. (See prior related posting.)

Dutch Court Dismisses Charges Against Jewish Man Who Could Not Produce ID On Sabbath

DutchNews.nl reports today that an appeals court in the Hague has dismissed charges of failing to produce an identification card that had been brought against an Orthodox Jewish man who for religious reasons did not carry his ID on the Sabbath.  A court spokesman said that the defendant's religious requirement was more important than the requirement to meet Dutch law.

UPDATE: DutchNews.nl (Feb. 22) reports that the public prosecution department will appeal the decision.

Preacher Loses Challenge To University's Speaker Rules

In McGlone v. Cheek, 2012 U.S. Dist. LEXIS 18820 (ED TN,  Feb. 15, 2012), a Tennessee federal district court upheld rules at the University of Tennessee that permit outside speakers on campus only if they are sponsored by a student organization. The rule was challenged by a Christian preacher who wanted to share his religious beliefs at various outdoor areas on campus, but did not have student organizational sponsorship.  The court held that the University's rules were reasonable content-neutral restrictions on use of a limited public forum. The court also rejected vagueness and overbreadth challenges.

Court Can Apply "Neutral Principles" To Dispute Over Removal Of Church Board Members

In Bendross v. Readon, (FL Aoo., Feb. 15, 2012), a Florida appeals court held that the ecclesiastical abstention doctrine does not apply to prevent a civil court from adjudicating a dispute over the make up of the a church's board.  Bible Missionary Baptist Church was incorporated as a non-profit corporation under Florida law. Eugene Rice, a member of the church's board,, filed the corporation's 2010 annual report with the state without notice to the remaining directors. The report removed four members of the board and added three new directors. Other board members objected, and eventually filed suit. The court held that since the church by-laws were silent on procedures for removing board members, default provisions in the non-profit corporation law should apply. The court explained:

Because the statute unambiguously establishes procedures of uniform law, the instant dispute "can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving a religious controversy." ...  The court is not asked to interpret religious doctrine or to evaluate church policies. The allegations at the heart of the complaint — that Appellees improperly attempted to remove members of the Board of Trustees — are entirely controlled by neutral application of section 617.0808.

House Committee Holds Hearing On Obama Contraception Coverage Mandate

The House Committee on Oversight and Government Reform yesterday held a hearing titled Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?  Eleven witnesses appeared on two panels before the committee. The Committee's website has transcripts of the prepared statements of the witnesses along with videos of the hearing. Reporting on the hearing, McClatchy Newspapers said:

Leaders from the Catholic, Jewish, Baptist and Lutheran faiths joined in opposition to a proposed federal mandate that would require church-affiliated employers to cover birth control in their health plans.

The leaders took part in a highly politicized oversight hearing led by one of President Barack Obama's chief critics, Rep. Darrell Issa, R-Calif. But for those leaders, the issue was deeply serious and personal, touching on one of the basic tenets of the nation's democracy and raising questions about government's place in the faith community.

AP reports that Democrats on the committee were unhappy that Republicans accepted only one Democratic witness. Democrats were also concerned about the fact that only two women were slated as witnesses.

UPDATE: Apparently only ten of the witnesses appeared, with Barry Lynn of Americans United not appearing.

New Jersey Legislature Passes Same-Sex Marriage Bill; Veto Expected

In New Jersey yesterday the Assembly gave final legislative approval to a bill legalizing same-sex marriage. However, according to a report by AP, it is expected that Gov. Chris Christie will veto the bill. The bill (full text) earlier this week passed the state Senate by a vote of 24-16, and then passed the lower house yesterday by a vote of 41-33.

New TRO Issued In Bronx Household Case, Keeping Churches In School Buildings

As reported by AP, yesterday a New York federal district court issued a temporary restraining order (full text) against the New York City Board of Education in Bronx Household of Faith v. New York City Board of Education, a suit that most observers had assumed was concluded.  The TRO temporarily bars the Board of Education from enforcing against a small Bronx church Chancellor's Regulation D-180.  That regulation bars public schools from allowing their buildings to be used for religious worship services or otherwise as a house of worship even though the buildings are available to be used outside of normal school hours for programs by community groups. Most observers thought that the validity of the regulation had been definitively upheld when last December the U.S. Supreme Court denied certiorari in this case which has worked its way up and down the courts for 17-years. (See prior posting.)  After the Supreme Court's denial of review of the 2nd Circuit's decision, widely published media reports indicated that scores of churches were being forced to seek out new places to meet, at significant extra cost to the churches. On Feb. 3, plaintiffs in Bronx Household however filed a new motion (full text) in federal district court seeking a preliminary injunction against enforcement of the school board rule, asserting:

While the Second Circuit ruled in June 2011, that the Department’s policy did not violate the Free Speech Clause of the First Amendment, neither this Court nor the Second Circuit have ever analyzed the Department’s policy under the Free Exercise Clause.... Further, that decision also requires new analysis of the Church’s Establishment Clause claim because it excessively entangles the government with religion.

In issuing the 10-day TRO yesterday, Judge Loretta Preska found that plaintiffs had demonstrated irreparable harm and a likelihood of success on the merits of their Free Exercise Clause and Establishment Clause claims. She also said that a written opinion explaining her ruling further would follow.

State Appeals Court Affirms Attorney Sanctions In Jews For Jesus Case

According to a press release yesterday by Liberty Counsel, a Florida state appeals court has affirmed a trial court order requiring attorney Barry Silver to pay $56,000 in attorneys' fees incurred by Jews for Jesus in a long running case in the state courts of Florida. The case was filed by Silver on behalf of Edith Rapp who claimed that Jews for Jesus published a false report from her missionary stepson that she had joined the organization. The trial court found that the pleadings included redundant, immaterial and scandalous content that the court had previously ordered stricken, and that this involved bad faith litigation conduct on the part of attorney Silver. (See prior posting.) Liberty Counsel also said that the appeals court indicated that if Silver files more motions on appeal, their denial will lead to more sanctions.

Challenge To Excommunication Dismissed Under Church Autonomy Doctrine

In Cassell v. Christian Science Board of Directors, 2012 Mass. App. Unpub. LEXIS 173 (MA App., Feb. 15, 2012), the Appeals Court of Massachusetts affirmed the trial court's application of the church autonomy doctrine and dismissed a challenge by plaintiff to her excommunication from the Christian Science church. Plaintiff was a member of a "restoration group" that challenged modernization efforts by the board. The court said it was clear that "the First Amendment forbids courts from interfering with a church's internal governance or with the excommunication of its members." The court held that plaintiff's appeal was frivolous and awarded attorneys' fees to defendant.

Christian Employee's Title VII Claim May Proceed

In Grant v. I.N.I. Corp., 2012 U.S. Dist. LEXIS 18113 (D SC, Feb. 14, 2012), a South Carolina federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 18116, Jan. 25, 2012) and permitted a Christian employee to proceed with a Title VII religious discrimination claim. Plaintiff alleged that he  informed his employer about his obligations to his church on Saturdays and Sundays, but that he was continuously scheduled him for Saturday shifts. Management failed to respond to his complaints.  He alleges that he was harassed because of the complaints and eventually was terminated from his position.

Revised Contraceptive Coverage Mandate Challenged In Lawsuit

The first lawsuit to challenge the Obama Administration's revised health care reform mandate on insurance coverage for contraceptive services was filed yesterday by Priests for Life, an organization with 50 to 60 employees. The complaint (full text) in Priests for Life v. Sebelius, (ED NY, filed 2/15/2012), claims that the group's free exercise and free speech rights, as well as its rights under RFRA are violated by the mandate requiring its health insurance policy to cover contraceptive services. The suit also claims violations of the Administrative Procedure Act.  Focusing for the first time in litigation on the Obama administration's new framework that calls for insurance companies to provide contraceptive coverage without charge when a religious employer has moral or religious objections to paying for such coverage, the complaint alleges:

There is no logical or moral distinction between the original contraceptive services mandate and the “revised” regulation announced on February 10, 2011. Employers who offer health insurance do not pay for individual benefits and products as they are provided. Rather, they pay a premium for a policy that gives their employees access to covered benefits and products when they need them. Under the “revised” regulation, all non-exempted health plans must include contraceptive services among their covered benefits. The choice for religious employers is still between paying an insurer to provide their employees with access to a product that violates their convictions (i.e., contraceptives, sterilization, and abortifacients) or paying a large annual fine to the federal government.

A press release from the American Freedom Law Center reported on the filing of the suit.

Mexican Catholic Church Criticized Over Voter Guidelines

Mexico's Constitution (Art. 130) provides that: "priests and ministers cannot form political associations nor carry out propaganda for any candidate, party or political group." AP reported yesterday that Mexico's Catholic Church is being criticized for releasing voter guidelines for the faithful as the July 1 presidential elections approach. The guidelines appear to be in technical compliance with the constitutional requirement, but they implicitly endorse certain candidates. The guidelines say that Catholics may not "choose as a political option those who support or promote false rights or liberties that attack the teachings contained in the Holy Scriptures, tradition and doctrine of the Church." They also say that Catholics should watch for whether candidates and parties support the right to life. These warnings appear to be directed against candidates from the Democratic Revolutionary Party which, in control of the Mexico City government, has legalized abortion and same-sex marriage.

Mormon Church Apologizes For Posthumous Baptism of Holocaust Victims; Comment Sought From Romney

The Los Angeles Times reported yesterday that Mormon Church leaders have apologized to the family of Simon Wiesenthal, a Holocaust survivor and activist in tracking down Nazi war criminals, for the posthumous proxy baptism of Wiesenthal's parents who were Holocaust victims. The proxy ceremonies took place last month at Mormon temples in Arizona and Utah, despite an agreement in 2010 between the Church of Jesus Christ of Latter Day Saints and the American Gathering of Jewish Holocaust Survivors and Their Descendants that the Church would end the practice by removing the names of Holocaust victims from its data base. Mormon Church spokesman Scott Trotter told the Salt Lake Tribune that the church member who submitted the names of Wiesenthal's parents for baptism engaged in a "serious breach of our protocol, and we have suspended indefinitely this person’s ability to access our genealogy records."

Meanwhile the Huffington Post yesterday reported that Holocaust survivor and Nobel Peace Prize winner Elie Wiesel is calling for Republican Presidential candidate Mitt Romney to speak out on the issue of posthumous proxy baptism of Jews after a researcher reported that the names of two of Wiesel's ancestors-- as well as the name of Wiesel himself who is still alive-- had been submitted to a restricted genealogy website from which a process for proxy baptism can be initiated.