Religion Clause

Wednesday, March 07, 2012

Britain's Equality and Human Rights Commission Issues New Report

Britain's Equality and Human Rights Commission yesterday issued its Human Rights Review, a study of how well public authorities protect and promote human rights in England and Wales. One chapter of the study is devoted to Art. 9 of the European Convention on Human Rights that protects freedom of thought, conscience and religion. The chapter concludes that "Courts are setting too high a threshold for establishing 'interference' with the right to manifest a religion or belief." The report also criticizes "indirect discrimination" precedents in which British courts focus on group, rather than individual, disadvantage growing out of challenged practices. Christian Today reports that the Evangelical Alliance protested another passage in the Commission's report: "The Commission believes that an employer may legitimately refuse to accommodate an individual’s religious beliefs where such accommodation would involve discrimination on the basis of other protected characteristics."

Religious Objections Raised To Possible Saturday Referendum On Scottish Independence

The Scottish government is planning to hold a referendum in Fall 2014 on Scottish independence from the United Kingdom. (Background). In response to a Consultation Paper issued by the Scottish government that raises the possibility of holding the referendum on Saturday, the Scottish Council of Jewish Communities plans to say that holding the referendum on Saturday will disadvantage observant Jews. According to the Press Association yesterday, the draft response by the Jewish organization says that voting by mail is not an adequate alternative since it would require voting before the end of the campaign. The organization is also concerned about pressure on Jews to work at the polls on Saturday. The Scottish Churches Parliamentary Office that coordinates responses from Christian churches also warns that a Saturday primary could create problems because it might involve counting of votes on Sunday.

Amish Defendants Say Hate Crimes Law Is Unconstitutional and Inapplicable To Alleged Assaults

As previously reported, last November federal prosecutors brought charges of conspiracy to violate the federal Hate Crimes statute against seven members of the Amish Bergholz clan who allegedly assaulted and cut the beards of 4 members of a different Amish community. Yesterday's Pittsburgh Post-Gazette reported that lawyers who are defending Bergholz clan leader Sam Mullet have asked the court to dismiss the charges on the ground that Congress exceeded its constitutional powers in enacting the Hate Crimes law. They argue that hate crimes do not affect interstate commerce, and that the crimes involved here were all committed in Ohio. They also argue that the Hate Crimes Prevention Act was designed to protect members of minority religions against actions from those outside it, and that it should not apply where the defendants and the victims were members of the same religion. They say that the assaults here are not alleged to be based on anti-Amish bias.

Tuesday, March 06, 2012

Suit Invokes Whistle Blower Protections of Dodd-Frank Against Religious Organization

The Tennessean yesterday reported on a lawsuit, recently removed to federal court, testing the extent to which employees of the Southern Baptist Convention and its International Mission Board are protected by the whistle blower protections of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Sec. 21F of the Securities Exchange Act). Plaintiff is Ron Nollner, a former Nashville Metro councilman, who, with his wife, was sent to India to oversee construction of an office building for the International Mission Board. Nollner says he was fired when he complained about illegal and unsafe building practices and reported that the builder and the architect were paying bribes to obtain approvals to complete the building. While so far defendants have raised mainly procedural issues, they indicate they will assert the ministerial exception defense if the case is not dismissed on other grounds.

4th Circuit: Qualified Immunity Protects Officers Who Barred Graphic Anti-Abortion Signs

In Lefemine v. Wideman, (4th Cir., March 5, 2012), the U.S. 4th Circuit Court of Appeals held that Greenwood County Sheriff’s Department officials had qualified immunity as to damage claims against them by an anti-abortion organization, Columbia Christians for Life. The court held that it was not clearly established at the time of the group's 2005 anti-abortion demonstration that law enforcement officers could not bar the display, even in a traditional public forum, of large graphic photos of aborted fetuses. The court also upheld the district court's refusal to award attorneys' fees to plaintiffs as well as the scope of the district court's injunctive and declaratory relief.

Australian Requirement On Identifying Veiled Women Signing Documents Taking Effect

In the Australian state of New South Wales, on April 30 new laws take effect which will require Muslim women wearing the full face veil to remove it when signing documents that need to be officially witnessed. According to The National yesterday, the law passed last December imposes a fine of 220 dollars Australian on justices of the peace and lawyers who witness documents without checking the identity of the person signing it by asking the person to show her face. Muslim women will generally be able to locate women justices of the peace to witness documents.

Monday, March 05, 2012

Israeli Mail Carriers Object To Delivering New Testaments

In Israel, mail carriers in the city of Ramat Gan are refusing to deliver thousands of copies of the New Testament translated into Hebrew that have been mailed to city residents. According to YNet News today, religious mail carriers are asserting that delivering the books, which they see as missionary material, violates their conscience. They say that delivering the books to Jewish residents violates halacha (Jewish religious law). They also say that delivering missionary material is illegal under Israeli civil law, though that is unclear. The U.S. State Department Religious Freedom Report says:

Proselytizing is legal in the country, and missionaries of all religious groups are allowed to proselytize all citizens. A 1977 law prohibits any person from offering material benefits as an inducement to conversion. It is also illegal to convert persons under 18 years of age unless one parent is an adherent of the religious group seeking to convert the minor. Despite the legality of proselytism, the government has taken a number of steps that discouraged proselytizing and encouraged the popular perception that it is illegal.

The Israel Postal Company says: "The Israel Postal Company is a governmental company operating in accordance to the Postal Law, which obligates us to distribute any mail it receives. The Israel Postal Company has no right or ability to chose what it can or cannot distribute. Therefore, the mail will be distributed according to the law."

Florida Legislature Passes Bill Authorizing Student-Led Inspirational Messages

Last Thursday, the Florida House of Representatives passed by a vote of 88-27 and sent to the governor for signature SB 98. The bill authorizes school districts to adopt policies allowing inspirational messages to be composed and delivered by students at student assemblies. The bill already passed the state Senate in early February by a vote of 31-8. According to last Thursday's Palm Beach Post News, Gov. Rick Scott is expected to sign the bill into law.

Sunday, March 04, 2012

Recent Prisoner Free Exercise Cases

In Kendrick v. Pope, (8th Cir., March 1, 2012), in a 2-1 decision, the U.S. 8th Circuit Court of Appeals held that an Arkansas inmate had adequately exhausted her administrative remedies relating to confiscation of her Catholic Bible, rosary beads, and other religious materials during a November 2007 cell shakedown. Judge Colloton concurred in part and dissented in part.

In Dayringer v. Webster, 2012 U.S. Dist. LEXIS 23771 (WD MO, Feb. 24, 2012), a Missouri federal magistrate judge rejected a Christian Separatist Church Society inmate's free exercise, equal protection and RLUIPA challenges to a Missouri Department of Corrections policy that limited inmates to possessing six books. It also rejected claims that searches of plaintiffs' cells were retaliatory.

In Garrison v. O'Dell, 2012 U.S. Dist. LEXIS 23905 (ED WA, Feb, 24, 2012), a Washington federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 153512, Nov. 18, 2011) and dismissed an inmate's complaint that his rights were infringed when correctional officers tampered with his food; said it looked "Jewishly kosher"; gave food plaintiff refused to other inmates; and mixed kosher and non-kosher foods.

In Trevino v. Martel, 2012 U.S. Dist. LEXIS 24296 (ND CA, Feb. 24, 2012), a California federal district court permitted a Native American inmate to move ahead with his complaint that prison officials denied him the use of tobacco for religious purposes and retaliated against him for filing grievances regarding tobacco by locking the gate to the religious sweat lodge.

In Saldana v. Borem, 2012 U.S. Dist. LEXIS 26131 (SD CA, Feb. 24, 2012), a California federal district court, rejecting in part a magistrate's recommendations (2011 U.S. Dist. LEXIS 153697, Dec. 16, 2011) dismissed, in part with leave to amend, complaints by an inmate who was a member of the Nahuatl/Aztec religion that a drawing with religious significance was seized as pornography.

In Locklear v. Thomas, 2012 U.S. Dist. LEXIS 25987 (ED NC, Feb. 29, 2012), a North Carolina federal district court dismissed 1st Amendment and RLUIPA claims regarding treatment of Native American inmates at a religious feast and plaintiff's being barred from attending a prayer circle.

In Easterling v. Pollard, 2012 U.S. Dist. LEXIS 26728 (ED WI, Feb. 29, 2012), a Wisconsin federal district court dismissed a claim by a Sunni Muslim inmate who insisted that he should observe Ramadan beginning 3 weeks earlier than the date set by the Figh Council of North America on which the Department of Corrections relies.

Report Traces Development of Santorum's Religious Faith

Today's New York Times carries a long front-page story on Rick Santorum's development of his religious faith. Titled From ‘Nominal Catholic’ to Clarion of Faith, the article reports:

Central to Mr. Santorum’s spiritual life is his wife, whom he calls “the rock which I stand upon.” Before marrying, the couple decided to recommit themselves to their Catholic faith — a turnabout for Karen Santorum, who had been romantically involved with a well-known abortion provider in Pittsburgh and had openly supported abortion rights, according to several people who knew her then....

The Santorums’ beliefs are reflected in a succession of lifestyle decisions, including eschewing birth control, home schooling their younger children and sending the older boys to a private academy affiliated with Opus Dei, an influential Catholic movement that emphasizes spiritual holiness....

Mr. Santorum was elected to the United States Senate in 1994. He likes to say he found God there.... His more spiritual path, he said, was prompted in part by a hallway encounter with Don Nickles, then a Republican senator from Oklahoma, who urged Mr. Santorum to attend a Bible study with fellow senators.... In the Senate, Mr. Santorum started a prayer group and would go on to help convert a fellow senator, Sam Brownback, now the governor of Kansas, to Catholicism....

In a 2002 essay, Mr. Santorum wrote that too many Catholics had been exposed to “uninspired, watered-down versions of our faith” and that it was time for more committed Catholics to reclaim religious institutions, like colleges, schools and hospitals, “for the sake of our souls.”

U.S. Muslim Group Launches Campaign To Explain Shariah

Islamic Circle of North America (ICNA) has announced that on Monday it is launching a campaign titled "Defending Religious Freedom" which is designed to create a better understanding of shariah law and to dispel common misunderstandings of it. The Defending Religious Freedom website furnishes extensive resources on shariah and on the progress of anti-shariah bills in numerous state legislatures. According to Religion News Service, the new campaign by ICNA will cost some $3 million and will feature billboards in at least 15 U.S. cities. ICNA will also sponsor "Shariah seminars" on 20 college campuses, as well as town halls and interfaith events in 25 cities.

House Resolution Condemns Iran's Persecution of Religious Minorities And Sentencing of Christian Convert

On Thursday, by a vote of 417-1, the U.S. House of Representatives passed H. Res. 556 condemning Iran's persecution of religious minorities and calling for the release of Youcef Nadarkhani as well as all others held or charged on account of their religion. Nadarkhani is a Muslim convert to Christianity who has been sentenced to death for apostasy and refusing to recant his new faith. (See prior related posting.) The New Orleans Times-Picayune reports that the single "no" vote on the House Resolution by Louisiana representative Lois Capps was cast by mistake. She in fact strongly supports the resolution.

Egyptian Court Dismisses Blasphemy Suit For Plaintiff's Lack of Standing

In Egypt yesterday, a court dismissed a second lawsuit charging businessman Naguib Sawiris with blasphemy for a cartoon of Mickey Mouse with a beard and Minnie Mouse in a veil which he tweeted last June. The court ruled that Ali Dergham, the conservative Salafi lawyer who brought the suit, lacked standing because he was not injured. The court sent the case to the prosecutor's office for further investigation. AP's report on the case reviews the rise in blasphemy cases filed by Salafi lawyers in recent months as their Al-Nour party has become the second most powerful in Egypt's new parliament. Last week a court dismissed another similar case against Sawiris on the same ground. (See prior posting.)

Saturday, March 03, 2012

Suit Filed Over Library's Room Use Policy

The religious education and advocacy organization, Liberty Counsel, last month filed a federal lawsuit against the Seaside, Oregon public library after being denied use of a library meeting room for a planned program on educating children from a Biblical perspective. The complaint (full text) in Liberty Counsel, Inc. v. Seaside Public Library Board of Trustees, (D OR, filed 2/9/2012), alleges that the library's room-use policy violates the 1st Amendment's free expression and establishment clauses, as well as the equal protection clause of the 14th Amendment. Under the library's rules, rooms are available for non-profit groups to use, but use for religious services or proselytizing is not permitted. The Astoria (OR) Daily Astorian reports on the lawsuit.

Friday, March 02, 2012

Pennsylvania Church Loses Zoning Challenge

In First Korean Church of New York v. Cheltenham Township Zoning Hearing Board, 2012 U.S. Dist. LEXIS 25968 (ED PA, Feb. 29, 2012), a Pennsylvania federal district court granted summary judgment to defendants in a lawsuit by First Korean Church that had been prevented by township zoning ordinances from using a 33.8 acre property for a church and seminary. The property, purchased by the church at a sheriff's sale, formerly housed another seminary. Plaintiff argues that a series of zoning actions and amendments since 1998 violated RLUIPA as well as the 1st and 14th Amendments. The court disagreed.

2nd Circuit Blinks In Bronx Household of Faith Temporary Injunction

In the battle between the U.S. Second Circuit Court of Appeals and New York federal district judge Loretta Preska over the scope of a preliminary injunction in Bronx Household of Faith v. Board of Education of the City of New York, it appears that the Second Circuit has blinked. As previously reported, Judge Preska defied the Second Circuit and on Feb. 24 extended to all schools her temporary injunction against enforcement of a New York rule barring churches from using school buildings after hours for worship services. The Second Circuit had said the temporary injunction should extend only to Bronx Household of Faith's use of a school building. The New York Law Journal reports that on Feb. 29, the Second Circuit refused the schools' request to stay Judge Preska's Feb 24 injunction. However the Second Circuit asked Judge Preska to hand down an opinion in the case by mid-June so that the dispute can be resolved by the start of school in the Fall. On that basis, the Second Circuit said that while the harm suffered by the schools "is real and significant," it "consists only in the continuation for the short balance of this school year of a status quo that has been in effect for almost a decade." AP reports on the latest developments.

"Jesus Christ Superstar" Cancelled In Belarus

The Christian Post and RIA Novosti report that further performances of Andrew Lloyd Webber's rock opera Jesus Christ Superstar have been cancelled in Belarus. A tour of the show in the country was scheduled by the St.Petersburg-based theater Rock Opera. The tour began in Brest, but opposition by leaders of the Orthodox Church and outraged audiences who saw the show as blasphemous led to performances being cancelled in Gomel, Mogilyov, and Minsk. [corrected]. It is unclear whether the government ordered the cancellations, or whether Rock Opera decided on its own to cancel it to avoid further strife. Apparently the faithful were particularly offended by a performance scheduled for the first day of Lent.

Pakistan Arrests Men Who Assaulted Woman Charged With Apostasy

Today's Pakistan Express Tribune reports that in the northeastern Pakistani city of Gujranwala, some 25 men have been arrested for assaulting a woman-- identified as Sana-- whom they accused of apostasy. Sana had converted from Christianity to Islam six months ago and had moved to the village with her two sons. However villagers accused her of still seeing her Christian husband. Sana denies that allegation and says that the villagers were stirred up by one of her attackers whose proposal of marriage she had turned down. The men who attacked her, shaved her head, required her to put on a garland made of shoes and paraded her through the village. The men will appear in an anti-terrorism court in Gujranwala today, charged with violating Sec. 354 of the Pakistan Penal Code (Assault to a woman with intent to outrage her modesty) and Sec. 7 of the Anti-Terrorism Act.

2012 White House Easter Egg Roll Announced; Lottery For Tickets Opens

The White House announced yesterday that the134th annual White House Easter Egg Roll will be held on April 9. This year's theme is "Let's Go, Let's Play, Let's Move." Starting yesterday and until March 5, children 13 years old and younger, along with their families, can enter an online lottery through which tickets to attend will be distributed. Elementary and Middle School students are also invited to enter a poster contest for the 2012 Easter Egg Roll.

Thursday, March 01, 2012

Senate Tables Proposed Broad Conscience Exemption To Required Health Care Coverage

The Washington Post reports that the Senate today tabled-- and thus effectively killed-- a proposed amendment (full text) to a federal highway bill offered by Sen. Toy Blunt (R-Mo) that would have provided a broad conscience exemption from any otherwise required coverage by health insurance plans under the Patient Protection and Affordable Care Act. The exemption would not have been limited to religiously affiliated organizations. The vote to table was 51-48, largely along party lines. However one Republican voted to table, while 3 Democrats voted against the motion to table.

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.

Wednesday, February 29, 2012

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.

Tuesday, February 28, 2012

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."

Monday, February 27, 2012

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.

Sunday, February 26, 2012

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.

Saturday, February 25, 2012

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.

Friday, February 24, 2012

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.

Thursday, February 23, 2012

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.)

Wednesday, February 22, 2012

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.

Tuesday, February 21, 2012

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.

Monday, February 20, 2012

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.