USCIRF Releases Annual Report With Unusual Spat Over Whether Turkey Should Be Named As A Country of Particular Concern

Today the U.S. Commission on International Religious Freedom released and transmitted to the President its 2012 Annual Report (full text)(appendices) reviewing religious freedom abuses in 25 countries around the world.  The report recommends that the State Department designate 16 countries as countries of particular concern" (CPCs).  Under the International Religious Freedom Act, CPCs are countries in which there are particularly severe violations of religious freedom. Eight of the countries named in the Report are already on the CPC list from prior years-- Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan. USCIRF recommends that Egypt, Iraq, Nigeria, Pakistan, Tajikistan, Turkey, Turkmenistan, and Vietnam be added to the list. The report recommends that 9 other countries be placed on the Watch List because of less severe religious liberty issues in those nations. These countries are Afghanistan, Belarus, Cuba, India, Indonesia, Laos, Russia, Somalia, and Venezuela.

[CORRECTED] As indicated in the report, its timing this year was impacted by the impending March 21 expiration of the terms of 5 of the 9 current Commissioners.  (As reflected in the USCIRF Report, Commissioner Leo's term is not up until May because while he is in his third term, he was apparently originally appointed for a partial term. The Act terminates those who have completed two "full" terms.) This house cleaning was mandated by reauthorization legislation passed by Congress last December. (See prior posting.)  Reflecting this reality, this year's report covered the period April 1, 2011 to Feb. 29, 2012, instead of covering the usual April 1 to March 31 period.

In addition, time pressures apparently gave rise to another curious development.  Five members of the Commission circulated a statement later in the day saying that Turkey should not have been included in the list of recommended CPCs, but instead should have been included only on the Watch List.  The Report (pp. 220-227) already contains dissenting and concurring statements as to the recommendation for Turkey.  Apparently the 4 dissenters convinced a 5th Commissioner to go along with them, but a bit too late.  Here is the full text of the e-mail that was circulated widely today:

I am writing to alert you to a statement issued Monday by five members of the federal US Commission on International Religious Freedom objecting to the Tuesday 3-20-release of the 2012 Annual Report without reflecting Commissioner Argue's changed position. As a result of the exclusion of this fact, the Commission recommendation was misrepresented as calling for Turkey to be on the CPC list rather than on the Watch List. The full statement is included below and attached. 

The undersigned Commissioners urge you to review the statement.

For further information, please contact me or other Commissioners. 

 Felice D. Gaer, 917-325-3844

STATEMENT BY 5 MEMBERS OF US COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM REGARDING RELEASE OF 2012 ANNUAL REPORT

While we support the 2012 Annual Report of the United States Commission on International Religious Freedom, on which we serve, we object to its release at this point. One of the nine Commissioners, Dr. Argue, has changed his position from recommending a designation of the Republic of Turkey as a Country of Particular Concern (CPC) to recommending it for the USCIRF Watch List. His position is not reflected in the document released today. This result is due to procedural issues which could have easily been accommodated, as there was ample time to reflect this change.

We support Dr. Argue's right to have his views accurately reflected as guaranteed in our authorizing Statute.* We regret the failure of the Annual Report to accurately reflect the majority view of Commissioners with respect to Turkey.

* Section 205(c) of our authorizing statute, PL-105-292 as amended, states:  "Individual or Dissenting Views Each member of the Commission may include the individual or dissenting views of the member."

SIGNED:

Commissioner Don Argue
Commissioner Felice Gaer
Commissioner Azizah al-Hibri
Commissioner William Shaw
Commissioner Ted Van Der Meid

New Online IRS Tool For Searching Out Tax-Exempt Organizations

The Internal Revenue Service last week announced the launch of a new online search tool for finding information about tax-exempt organizations. The one-stop Exempt Organizations Select Check allows the user to determine if a particular organization is eligible to receive tax-deductible charitable contributions, whether the organization has had its tax-exempt status automatically revoked for failing to file Form 990 for 3 consecutive years, and whether the group has filed Form 990-N. Searches can be carried out by employer identification number as well as name, and exempt-status revocations can be searched as well by city, state or zip code.

Step Toward Disestablishment of Church of Norway Taken

According to ENInews, last week a major step toward disestablishment of Norway's state church was taken. On March 16, the government in its weekly session with King Harald V formally agreed to proposals for changes in the country's Constitution and other church legislation. The proposals must still be passed by the Parliament (Storting). That is expected to happen in May or June. The Ministry of Government Administration, Reform and Church Affairs said that under the proposal, the provision in the Constitution that "the Evangelical Lutheran religion should remain the state's public religion" will be replaced with a provision that the state's basis will be "our Christian and Humanist heritage."  The appointment of bishops and other clergy will be transferred from the King to Church of Norway bodies. Government officials dealing with church affairs will no longer be required to be Church of Norway members. However, Church of Norway clergy will continue to be employed by the state.While the king will no longer be the "summus episcopus," the Constitution will provide that the king "shall continue to profess the Evangelical Lutheran religion."

Another Colorful Order Entered To Enforce Religion In School Settlement

Last month, a settlement was finally entered in a lawsuit challenging the Medina Valley, Texas Independent School District's plan to include student-led prayers in its graduation ceremony. The settlement dealt broadly with issues of religion in the public schools. (See prior posting.) A notable feature of the litigation has been the colorful memos and opinions issued by federal district judge Fred Biery.  That tradition continues as yesterday Judge Biery issued an order (full text) captioned "Non-Kumbaya Order: The Homo Sapien Saga Continues."

The settlement included a stipulation that: "School District Personnel will not disparage the Plaintiffs." However hours after the court approved the settlement agreement, the Superintendent gave a television interview calling the lawsuit a "witch-hunt." Subsequently disparaging comments were posted on Facebook by the school's band director.  That led plaintiffs to file a Motion to Enforce the Settlement Agreement and to Judge Biery's 7-page order which stated in part:

While Hollywood once proposed that "love means never having to say you're sorry," life and litigation offer more realistic approaches to resolving disputes and avoiding a lengthy court hearing on the allegations and responses presently before the Court. Surely, the parties and counsel have more constructive things to do.

The Court does not expect the parties to hold hands and sing "Kumbaya" around a campfire beside the Medina River. Nor does the Court expect the respondents ... to engage in a public spectacle of self-flagellation for communicating words better left unsaid. Moreover, the Court does not expect plaintiffs to become traditional Trinitarian Christians, though the Court suggests plaintiffs might follow the moral and civility lessons of Matthew 5:39 ("if someone strikes you on the right cheek, turn to him the other also") and a portion of "Essay on Criticism" ("to err is human; to forgive, divine")....

Accordingly, respondents are given the opportunity, within ten days of this order, to sign the following statement, privately and personally.... "I apologize for statements I made, which were interpreted by plaintiffs as disparaging towards them. I will abide by the Settlement Agreement and Release entered on February 9, 2012."

.... Plaintiffs, within ten days of notification of respondents' signed statements, shall sign, privately and personally, with delivery to plaintiffs' counsel: "Your apology is accepted. I will abide by the Settlement Agreement and Release entered on February 9, 2012."

.... If the Court's suggestion is acted upon ...the Court will find that any alleged contempt by respondents has been purged. If no certification is received, the matter will be set for a show cause hearing.

Finally, the Court reminds the parties of the Fifth Amendment....While it is invoked for criminal prosecutions, its underlying premise is instructive for Homo sapien relationships in general: Trouble does not come from words unspoken, particularly in this age of e-mails, tweets, cameras and recorders.

San Antonio Express News reported on the order.

Venice Commission Criticizes Parts of Hungary's New Law On Legal Status of Churches

The Venice Commission is the Council of Europe's advisory body on constitutional law. Yesterday, responding to a request from the government of Hungary for an advisory opinion, the Commission issued a 15-page report on Hungary's 2011 Act On the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities. (Full text). The Commission summarized its findings as follows:

107. As a whole, the Act constitutes a liberal and generous framework for the freedom of religion. However, although few in number, some important issues remain problematic and fall short of international standards.

108. The Act sets a range of requirements that are excessive and based on arbitrary criteria with regard to the recognition of a church. In particular, the requirement related to the national and international duration of a religious community and the recognition procedure, based on a political decision, should be reviewed. This recognition confers a number of privileges to churches concerned.

109. The Act has led to a deregistration process of hundreds of previously lawfully recognised churches, that can hardly be considered in line with international standards.

110. Finally, the Act induces, to some extent, an unequal and even discriminatory treatment of religious beliefs and communities, depending on whether they are recognised or not.

111. The Venice Commission was informed that - as a reaction to the draft opinion - the Government intends to introduce amendments, which is welcome. The Commission had no possibility to examine these proposals but it remains at the disposal of the Hungarian authorities for any further assistance.

AP reports on the Commission's opinion. (See prior related posting.)

Certiorari Denied In Clergy Abuse and College Student Organization Cases

The U.S, Supreme Court yesterday denied certiorari in two unrelated cases. It denied review in Doe v. Roman Catholic Archdiocese of St. Louis, (Docket No. 11-840, cert. den. 3/19/2012) (Order List). In the case, a Missouri appellate court rejected plaintiff's claim against the Archdiocese of St. Louis for intentional failure to supervise one of its priests who sexually abused plaintiff as a teenager.  The court held that under Missouri law, a duty to supervise arises only as to activity that takes place on Church premises or that occurs while the priest was using a chattle belonging to the church. It also followed Missouri precedent holding that the 1st Amendment bars assertion of tort claims against a religious institution based on its alleged negligence in supervising, retaining, or hiring sexually abusive clerics. (See prior posting.) Bloomberg News reports on the Supreme Court's denial of review.

The Supreme Court also denied review in Alpha Delta Chi- Delta Chapter v. Reed, (Docket No. 11-744, cert. den. 3/19/2012) (Order List). In the case, the 9th Circuit upheld the facial constitutionality of a San Diego State University policy that denies recognition to any student group that restricts membership or eligibility to hold officer positions on the basis, among others, of religion. However, the 9th Circuit concluded that plaintiffs had raised a triable issue of fact as to whether the University applied the policy in a discriminatory manner in denying recognition to a Christian fraternity and sorority, while granting recognition to certain other groups that limit their membership. (See prior posting.) The San Francisco Chronicle reports on the Supreme Court's denial of certiorari.

Pakistani Police Officer Gets Life In Prison For Blasphemy

Pakistan Today reports that on Friday a court in the Pakistani city of Kasur imposed a life sentence and a fine equivalent to $2200 (US) for blasphemy on Police Station House Officer Manzarul Haq Shah Jahan.  The complaint against Jahan, alleging violation of Sec. 295C of the Pakistan Penal Code, was filed by Muhammad Younis who said that in a conversation about street crime with him and two others, Jahan had used blasphemous words against the Prophet Muhammad. Before filing the complaint, Younis discussed the incident with 65 members of a mosque. Several religious scholars have also issued fatwas against Jahan.

Diocese Loses On 1st Amendment Defense To Negligent Supervision Suit

AP reported last week that a state trial judge in Pulaski County, Arkansas has rejected a 1st Amendment defense by the Roman Catholic Diocese of Little Rock and has held that plaintiff Shannon Oates may sue the diocese for negligent supervision of a priest and failure of the diocese to protect her. Oates, who is 41, claims she was lured into a romantic and sexual relationship with Fr. Charles Kanu beginning in 2009 as he acted as her mentor in her conversion to Catholicism. The suit alleges that the diocese knew or should have known what Kanu was doing. Kanu is not named as a defendant in the case.

Recent Articles of Interest

From SSRN:

• Amy Bowers and Kristen A. Carpenter, Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Association, (Indian Law Stories, Carole Goldberg, Kevin K. Washburn, Philip P. Frickey, eds., Foundation Press, 2011).
• Matthew L. M. Fletcher, Resisting Congress: Free Speech and Tribal Law, (The INdian Civil Rights Act at Forty, Kristen A. Carpenter, Matthew L.M. Fletcher, Angela R. Riley eds., UCLA American Indian Studies Center, 2012).
• Michael A. Helfand, Litigating Religion, (Boston University Law Review, Vol. 92, 2012).
• Mark Rienzi, The Constitutional Right Not to Kill, (March, 17 2012).
• Robin L. West, A Marriage is a Marriage is a Marriage: The Limits of Perry v. Brown, (Harvard Law Review Forum, Vol. 125, pp. 47-53, 2012).
• Ali Manzo Usman, Social Human Rights In Islam and the Universal Declaration on Human Rights (U.D.H.R 1948): Comparative Study, (OIDA International Journal of Sustainable Development, Vol. 3, No. 5, pp. 39-46, 2012).

From SmartCILP:

• Robert H. Nelson, Rethinking Church and State: The Case of Environmental Religion, 29 Pace Environmental Law Review 121-217 (2011).
• Intisar A. Rabb, The Islamic Rule of Lenity: Judicial Discretion and Legal Canons, 44 Vanderbilt Journal of Transnational Law 1299-1351 (2011).
• Alexander Volokh, Do Faith-Based Prisons Work? 63 Alabama Law Review 43-95 (2011).
• Sharia, Family, and Democracy: Religious Norms and Family Law in Pluralistic Democratic States. Foreword by John Witte, Jr.; articles by Abdullahi Ahmed An-Na'im, Ann Laquer Estin, Natan Lerner, Rosalind I.J. Hackett, Abdulmumini A. Oba, Eyene Okpanachi, Abdul-Fatah Kola Makinde, Philip Ostien, M. Christian Green, Joel A. Nichols, Pascale Fournier, Yuksel Sezgin and T W Bennett. 25 Emory International Law Review 779-1059 (2011).

Rabbi Ordered To Jail For Religious Refusal To Testify To Grand Jury

According to the Los Angeles Times last week, a California federal district court judge who has found Hasidic rabbi Moshe Zigelman in contempt for refusal to testify has ordered Zigelman to be jailed on March 21.  Zigelman has already served a prison term for tax evasion by his New York-based Spinka sect.  After his release from prison, he was subpoenaed to appear before a grand jury to testify in the continuing probe of the tax scheme. However, Zigelman refused, citing the Jewish principle of mesira-- the variously interpreted ban on informing civil authorities that a fellow-Jew is violating the law. Zigelman will remain in jail for a maximum of 18 months, or less if he decides to testify.  (See prior related posting.)

California AG Rules Madonna Mosaic On Public Land Would Be Unconstitutional

U-T San Diego reported last week that California's Attorney General has issued an Opinion (March 7, 2012) (full text) concluding that it would violate the "No Preference" clause (Art. 1, Sec. 4) of the California Constitution for the California Department of Parks and Recreation to permit the city of Encinitas to install the "Surfing Madonna" mosaic on state property at Moonlight State Beach.  According to an AP article last year, which carries a photo of the glass mosaic, the mosaic was placed under a train bridge in Encinitas. However technically it was graffiti. When Encinitas began steps to remove the mosaic, its creator, Mark Patterson, identified himself and reached an agreement with the city to remove the mosaic so it could be installed elsewhere. This is descried in a California Catholic Daily article of Feb. 12. In a comment that Patterson posted online to this California Catholic Daily article, he described his inspiration for creating it. The content of the post became important to the Attorney General's ruling.

The Attorney General said in part:

... Mr. Patterson's attorney has asserted that  the mosaic has a purely secular message ("Save the Ocean") and that Mr. Patterson was using the image of the Virgin of Guadalupe as a means of conveying that message. However, this assertion is inconsistent with Mr. Patterson's own description of how he came to adopt the image as a part of his mosaic. In the quotation above from the comment he posted on California Catholic Daily,  he states that the Virgin "appeared" to him on several occasions. Her message to him was to save the oceans....

Because the image of the Virgin of Guadalupe is central to the mosaic, an objective observer would conclude that Parks wished to convey a message related to that potent symbol of Catholicism. And even if the message is one of saving the oceans, it is the Virgin who is stating the message

Cyprus and Church of Cyprus Reach Tax Agreement

Cyprus Mail reports the the Holy Synod of the Church of Cyprus last Friday approved a tax agreement with the government of Cyprus that will bring millions of Euros into the country's dwindling coffers this year. The country's cabinet already approved the deal last Wednesday, and the Church agrees to be bound by it now, rather than waiting for parliamentary approval. The agreement is based on a 2005 agreement that was never ratified by the Cabinet, but includes several changes from the 2005 draft. According to Voice of Russia, the main feature is an agreement that the Church in the future will pay taxes when buying, selling or exchanging real estate. The government gives up claims for tax arrears by the Church, while clergy will no longer get duty-free autos. The church plans transactions this year which will generate 20 to 30 million Euros in tax revenue.  Finance Minister Kikis Kazamias thanked the Church for delaying one large transaction until after the agreement was finalized so that it would generate revenues for the government.

Pressure To Include Shariah Law In New Constitution Grows In Tunisia

In the wake of Tunisia's Arab Spring revolution last year, the country's Parliament is in the midst of drafting a new constitution. As CNS News reported earlier this month, pressure is growing to enshrine Shariah law as the principal source of legislation in the new constitution, despite Tunisia's secular history and statements last year by the head of the moderate Islamic Ennahda party that won 40% of the seats in Parliament that the Constitution would not mention Islamic law. (See prior posting.) According to Reuters, last month the Popular List, the party with the third largest block in Parliament, proposed a draft constitution that called for Shariah to be the principal source of Tunisia's legislation. Now, last Friday, thousands of Tunisians rallied outside of parliament demanding that the new constitution specify Islam as the state religion and Shariah as the principal source of legislation.  World Bulletin reports that the demonstration was organized by a coalition of religious organizations known as the Islamic Front. Ennahda did not participate in the demonstration.

Recent Prisoner Free Exercise Cases

In Copeland v. Livingston, (5th Cir., March 13, 2012), the 5th Circuit Court of Appeals rejected an inmate's challenge to his 6-month ban from prison religious gatherings after he caused a disturbance by refusing to leave a Muslim meeting in the prison chapel. It also dismissed his challenge to the monitoring or religious meetings and the presence of Christian symbols in the chapel.

In Golden v. Cates, 2012 U.S. Dist. LEXIS 30901 (ED CA, March 8, 2012), a California federal magistrate judge dismissed, with leave to amend, a prisoner's complaint that he has been denied a kosher meal and required to work on the Sabbath.

In Washington-El v. Beard, 2012 U.S. Dist. LEXIS 30489 (WD PA, March 7, 2012), a Pennsylvania federal district court dismissed an inmate's complaint that his requests for a copy of the Koran and his requests to participate in Islamic congressional meetings and services were rejected. His claim under RLUIPA was dismissed with prejudice, but he was given an opportunity to file an amended complaint as to his 1st Amendment free exercise claim. The magistrate's recommendation in the case is at 2012 U.S. Dist. LEXIS 30482 (Feb. 3, 2012).

In Lenhart v. Pennsylvania, 2012 U.S. Dist. LEXIS 30447 (WD PA, March 7, 2012), a Pennsylvania federal district court dismissed, with leave to amend as to some defendants, plaintiff's claim that as a pre-trial detainee he was denied access to a Catholic priest. The magistrate's recommendations in the case are at 2012 U.S. Dist. LEXIS 30444 (Jan. 12, 2012).

In Collman v. Skolnik, 2012 U.S. Dist. LEXIS 29986 (D NV, March 6, 2012), a Nevada federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 30011, Jan. 26, 2012), and permitted a death row inmate to proceed with a number of his claims regarding delay in allowing him clergy visits from clergy of the Philadelphia Church of God (PCG), audio monitoring of these visits initially, delay in allowing him a full immersion baptism and failure to recognize PCG as a faith group.

In Williams v. Roberts, 2012 U.S. Dist. LEXIS 30468 (ND NY, March 7, 2012), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 153917, Dec. 15, 2011) and dismissed an inmate's claims that he was wrongfully disciplined for not complying with count procedures because at the time he was engaged in prayer as required by the tenets of the Nation of Islam.

In Ramon v. Dretke, 2012 U.S. Dist. LEXIS 31428 (ED TX, March 8, 2012), a Texas federal district court  adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 31522, Jan. 3, 2012) and dismissed an inmate's complaint that when he sought access to a Catholic priest, the prison chaplain told him it would take too much time to arrange for a priest to assist him with partaking of the sacraments. Plaintiff has now been transferred to a status that permits attendance at religious services.

In Knight v. Thompson, 2012 U.S. Dist. LEXIS 31288 (MD AL, March 8, 2012), an Alabama federal district court adopted a magistrate's recommendations (set out in Limbaugh v. Thompson, 2011 U.S. Dist. LEXIS 153964, July 11, 2011) and dismissed claims of Native American inmates that that state policies restricting inmate hair length violate RLUIPA.

In Durbin v. Cain, 2012 U.S. Dist. LEXIS 32159 (MD LA, March 8, 2012), a Louisiana federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 31882, Feb. 16, 2012)  and dismissed a Jewish inmate's claim regarding refusal to allow him to celebrate Jewish holidays, but permitted him to proceed with his complaint that he was transferred to a prison outcamp where he is limited in his ability to practice his religion and meet together with members of his faith.

In Smith v. Cain, 2012 U.S. Dist. LEXIS 32144 (MD LA, March 8, 2012), a Louisiana federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 31876, Feb. 14, 2012) and referred back for an evidentiary hearing an inmate's petition to withdraw a previous settlement of a claim against prison officials that he was forced to listen to religious programming on the prison radio and TV network and that the Establishment Clause was violated when a Baptist Bible College was established on prison grounds. Plaintiff claims he signed the prior settlement agreement under physical threats from the warden.

In Mohamad v. Smith, 2012 U.S. Dist. LEXIS 32478 (WD PA, March 12, 2012), a Pennsylvania federal magistrate judge recommended dismissing an inmate's constitutional and RLUIPA claims that his kufi was wrongfully removed for the taking of his inmate ID photo.

In Ruiz v. Adamson, 2012 U.S. Dist. LEXIS 32971 (ND IL, March 8, 2012), an Illinois federal district court allowed an inmate to proceed with various claims stemming from the prison chaplain's refusal of his request to change his religious designation to House of Yahweh and to receive a kosher diet.

Tennessee AG OKs Excluding Religious Groups From Partnering With Homeland Security Department

The Tennessee legislature has pending before it companion bills, SB 2237 and HB 2375, that would authorize the state's Department of Safety and Homeland Security to promote its goals by entering partnership agreements with non-profit organizations.  The state's Attorney General has issued Opinion No. 12-29 (March 2, 2012), concluding that a proposed amendment to the bills that would exclude partnership agreements with political or religious non-profits (and their affiliates) is constitutionally defensible. As to religious non-profits, the Attorney General's opinion concludes:

All religious and religious-affiliated nonprofit organizations are treated the same and are excluded. On its face, this exclusion does not appear to be based upon any hostility toward religion, but rather can be characterized as an attempt to avoid an excessive entanglement or improper affiliation with religion.... [T]he pending legislation mandates numerous requirements applicable to the “nonprofit partners”.... These on-going requirements could be construed as being an excessive entanglement or improper affiliation between the Department of Safety and Homeland Security and a religious or religious-affiliated organization....

[Thanks to Eugene Volokh via Religionlaw for the lead.] 

Coptic Pope Shenouda Dies As Egypt Goes Through Important Transition

The New York Times reports that long-time head of the Coptic Orthodox Church in Egypt, Pope Shenouda III, died Saturday after a long illness. His death comes at a critical time for the 10 million Coptic Christians in Egypt as their country goes through a political transition in which the formal role of Islam is still uncertain. In a statement offering condolences, U.S. Secretary of State Hillary Rodham Clinton called Shenouda "an advocate for national unity and religious cooperation." President Obama issued a statement, saying in part: "We stand alongside Coptic Christians and Egyptians as they honor his contributions in support of peace and cooperation."

Indiana Supreme Court Grants Direct Appeal of Trial Court's Decision In School Voucher Case

The Indiana Supreme Court yesterday (March 16) issued an order (full text) in Meredith v. Daniels allowing the parties to skip the intermediate appellate court and take a direct appeal to the state Supreme Court of a trial court's decision upholding Indiana's Choice Scholarship school voucher program. NWI Times reports on the court's action. The case involves claims by 12 plaintiffs that the voucher program violates state constitutional provisions that bar the use of tax funds for religious institutions and which require a general and uniform system of common schools. (See prior posting.)

Religious Discrimination In Employment Claims Filed or Decided This Week Involve Multiple Faiths

In recent days, several cases involving refusal of employers to accommodate employees' religious beliefs have been filed or decided. In Rumfola v. Total Petrochemical USA, Inc., (MD LA, March 13, 2012), a Louisiana federal district court held that a jury question exists as to whether an employer would have suffered "undue hardship" if it allowed an employee, a member of the Living Church of God, to take off on Friday night and Saturday for religious reasons during a production plant turnaround process. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

The Detroit News reported earlier this week on a federal lawsuit filed by a Jewish dentist against the Dearborn, Michigan dental office that employed him. Dr. Mark Ellis claimed that his employer accommodated religious practices of Muslim employees, while rejecting or reluctantly granting similar accommodation to him.  Ellis says he was advised against wearing a yarmulke (ead covering) and Tzitzit (ritual fringes) during work hours because the dental office had many Arabic patients.However Muslim dentists could wear head coverings and other religious clothing.  Midwest Dental also constantly harassed Ellis about leaving early on Friday, even though it permitted Muslim dentists an extra hour at lunch to attend Friday prayers.

Aol Jobs reported this week that 8 Musliim cab drivers in Orlando, Florida are filing complaints with the Equal Employment Opportunity Commission that their employer, Star Taxi, threatened they would be fired if they were caught praying at any of the company's service stations, even though employees of religions are4 permitted to take a break to pray or read religious material.

New Compromise Proposed By Government On Contraceptive Coverage By Religious Non-Profits' Insurance Policies

In a news release yesterday, the Department of Health and Human Services, the Labor Department and the Department of the Treasury announced that they were issuing an Advance Notice of Proposed Rulemaking to once more try to find an acceptable compromise with religiously affiliated institutions on the issue of contraceptive coverage in health care policies made available to their employees and (for colleges) their students. The Advance Notice takes several steps to try to meet concerns expressed, particularly by Catholic institutions.

First it makes clear the the narrow definition of religious employer used for the previously announced religious exemption from the contraception coverage mandate is intended only for purposes of the coverage requirements enacted by the Affordable Care Act:

Whether an employer is designated as “religious” for these purposes is not intended as a judgment about the mission, sincerity, or commitment of the employer, and the use of such designation is limited to defining the class that qualifies for this specific exemption. The designation will not be applied with respect to any other provision of the PHS Act, ERISA, or the Code, nor is it intended to set a precedent for any other purpose.

The Advance Notice reiterates the Administration's previous proposal calling for insurance companies to furnish contraceptive coverage directly, at no additional cost, for employees of non-profit religious institutions that have religious objections to financing such coverage.  The Advance Notice then moves on to tackle the problem of contraceptive coverage for the many non-profit religious organizations that self-insure, and thus lack an insurance company to furnish coverage. For these organizations, the third-party administrator of the group health plan or some other independent entity would arrange and finance contraceptive coverage.  Religious non-profit groups would only have to self-certify their eligibility. The Advance Notice suggests a number of sources for revenue for the third-party administrator to use in providing the coverage.

The New York Times reports on the new proposal and says that it "virtually guarantees that birth control will remain an issue in the battle for the White House and Congress." [Thanks to Jonathan Adler at Volokh Conspiracy for the lead.]

Britain Begins Consultation Process On Same-Sex Civil Marriage

Yesterday, Britain's Home Office launched a Consultation seeking public input on how to provide equal access to civil marriage for same-sex couples. According to the 25-page consultation document (full text), the government's proposals are designed to:

• enable same-sex couples to get married through civil ceremonies.

• retain civil partnerships for same-sex couples, including the ability to have a civil partnership registration on religious premises (on a voluntary basis and retaining the ban on any religious elements forming part of the registration).

• allow transsexual people to change their legal gender without having to legally end their existing marriage or civil partnership.

• make no changes to how religious marriages are solemnized.

Expanding on the issue of religious marriage, the consultation document says:

marriages solemnized through a religious ceremony and on religious premises would still only be legally possible between a man and a woman. The Government is not seeking to change how religious organisations define religious marriage and any subsequent legislation would be clear that no religious organisation could conduct a religious marriage ceremony on religious premises for same-sex couples.

Annex B of the document sets out specific consultation questions. Interested parties have until June 14 to file responses and comments on the proposals.  BBC News reports on these developments.

South Africa's Chief Justice Criticized For Inviting Judges To Evangelical Presentation

Today's Mail & Guardian is one of a number of South African media outlets covering criticism of an e-mail sent on behalf of South Africa's chief justice, Mogoeng Mogoeng, to chief judges around the country urging them to attend a leadership conference presented by American evangelist and motivational speaker John C. Maxwell.  Apparently none of the invited judges in fact attended the conference (which involved an attendance fee), but calls are being made for the Judicial Service Commission to censure Mogoeng. Mogoeng is is a lay preacher at the Winners Chapel International Church, and his appointment last year as chief justice was controversial because of his apparent views on homosexuality and the role of women. (See prior posting.)

UPDATE: SAPA reports (3/18) that the Heads of Courts say they have full confidence in Mogoeng.

Rape Victim Denied Anti-Conception Pill By Religious Jail Guard States Claim

In R.W. v. Spinelli, (MD FL, March 6, 2012), a Florida federal district court held, in a case involving rather unusual facts, that a rape victim can maintain a suit for violation of her privacy and equal protection rights against a jail employee.  Plaintiff was prescribed anti-conception pills at a rape crisis center where she took one and was instructed to take the second 12 hours later.  While police, investigating the rape, accompanied the victim back to the crime scene, they discovered that there was an outstanding arrest warrant against her. They arrested her, and when she was taken into custody the second pill she had with her was confiscated.  The next morning when she asked defendant Spinelli, the jail worker in charge of decisions involving her care, for the pill, Spinelli refused saying it was against her (Spinelli's) religious beliefs to administer it. Ultimately, just prior to her release the next day, plaintiff was permitted to take the second pill, and she did not become pregnant.

The court, while permitting plaintiff to move ahead, warned that at most she would receive only nominal damages of $1. It also expressed some question about whether plaintiff's equal protection allegations were well-founded. She alleged that Spinelli would have given the same contraceptive to male inmates undergoing sex change. The court dismissed plaintiff's claims against the sheriff in his official capacity. Courthouse News reports on the decision.

St. Louis Archdiocese Loses Suit To Regain Control of Parish

St. Louis Review reports at length on decision handed down yesterday by a Missouri state trial court judge rejecting attempts by the Catholic Archdiocese of St. Louis and former parishioners of St. Stanislaus Kostka Church to return the congregation to communion with the Catholic Church.  The church was created as a separate non-profit corporation in 1891. A parallel parish, originally created by the Franciscans, operated under the control of the Archbishop at the church. In 2003, St. Stanislaus' members rejected demands from the Catholic Archdiocese to restructure and turn its assets over to the Archbishop. A year later the Archbishop declared that St. Stanislaus is no longer a Catholic parish and moved the exsiting parish to a different location. Board members, and a priest hired by the church, were excommunicated.

In Krauze v. Polish Roman Catholic St. Stanislaus Parish, (MO Cir. Ct., March 15, 2012), the court held that Church bylaws are not inconsistent with its Articles of Agreement, and that the church's property belongs to the congregation, not the Archdiocese. Summarizing the issues it faced, the court said:

[I]n 1891 the predecessors of today’s litigants struck a tacit bargain that, in regard to St. Stanislaus, the Archdiocese would not overreach into civil corporate matters and the Parish Corporation would leave religious matters to the Archbishop. Since neither side anticipated that the other would ever break that deal, both sides now seek to have the Court enter a judgment declaring that the other side has breached....

After analysis of the articles, the charter, the bylaws and Canon law, ultimately it is clear that a declaratory judgment in Plaintiffs’ favor would not finally resolve issues with St.Stanislaus Corporation.

In passing on the question of title to the church's property, the court said:

The Archbishop may own the souls of wayward St. Stanislaus parishioners, but the St. Stanislaus Parish Corporation owns its own property.

Canadian Priest Sues LifeSite News For Defamation

LifeSite News yesterday reported on a $500,000 defamation lawsuit filed in 2011 against it and five of its staff in Canada by Quebec Catholic priest and former member of Parliament, Raymond Gravel.  Apparently Gravel objects to articles published online by LifeSite News that describe him as being "pro-abortion." Examples of the articles can be found here and here. Fr. Gravel is a critic of the Church's teachings on homosexuality, and apparently describes himself as "pro-choice" on abortion. LifeSite News says that defending the suit will cost it $130,000. Apparently LifeSite News' primary defense is that Gravel has contributed significantly to his own damages by granting interviews in which he repeats the statements that he claims are defamatory. It argues that he has fueled his own reputation, and that LifeSite News was not responsible for his decision to leave politics. LifeSite News has also counterclaimed for damages against Gravel.  Available details on the parties' claims are sketchy at this point.

Private Business and Its Owner Challenge Contraceptive Coverage Mandate On Religious Freedom Grounds

The American Center for Law and Justice yesterday announced the filing of a federal lawsuit by a small business and its principal owner challenging on religious liberty grounds the Obama administration's mandate requiring health insurance policies to cover contraceptive services. CatholicVote.org Legal Fund, which filed the suit on behalf of plaintiffs, also issued a press release. The complaint (full text) in O'Brien v. U.S. Department of Health and Human Services, (ED MO, filed 3/15/2012), alleges:

3. Plaintiff, Frank R. O’Brien Jr., is an adherent of the Catholic religion. As the individual with the controlling interest in Plaintiff, O’Brien Industrial Holdings, LLC (“OIH”) and its subsidiaries, O’Brien wishes to conduct his business in a manner that does not violate the principle of his religious faith.

4. O’Brien has concluded that complying with the Mandate would require him to violate his religious beliefs because it would require him and/or the corporations he controls to pay for, not only contraception and sterilization, but also abortion, because certain drugs and devices such as the “morning-after pill,” “Plan B,” and “Ella” come within the Mandate’s and HRSA’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action.

The complaint alleges violations of the 1st Amendment, the Religious Freedom Restoration Act and the Administrative Procedure Act.  While several lawsuits have been filed by religiously affiliated non-profit organizations challenging the Affordable Health Care Act mandate (see prior posting), this is the first challenge by a private business.  The complaint says that the company's mission, as described on its website "is to make our labor a pleasing offering to the Lord while enriching our families and society."

The lawsuit raises a number of complicated issues not directly addressed in the complaint.  These include whether business entities (here "limited liability companies") can have protected religious beliefs, and, if not, when are an individual owner's religious beliefs infringed by mandates placed on the business entity.

Ugandan Gay Rights Group Sues American Activist in U.S. Court

On Wednesday, a Ugandan LGBTI rights group, represented by the Center for Constitutional Rights, filed a lawsuit under the Alien Tort Statute in a U.S. federal district court in Massachusetts against Massachusetts resident Scott Lively, founder of Abiding Truth Ministries. The complaint (full text) in Sexual Minorities Uganda v. Lively, (D MA, filed 3/14/2012), alleges that Lively, along with counterparts in Uganda, has waged a decades-long campaign to persecute persons in Uganda on the basis of their gender and/or sexual orientation and gender identity. (See prior related posting.)The complaint claims:

In large part due to defendant Lively's contributions to the conspiracy to persecute LGBTI person in Uganda, plaintiff ... as well as its individual staff-members ... have suffered severe deprivations of fundamental rights. Their very existence has been demonized through a coordinated campaign ... to attribute to the "genocidal" "gay movement" an irrepressible predilection to commit rape and child sexual abuse.... [T]hey have endured severe discrimination in virtually every meaningful aspect of their civil and political lives; their association has been criminalized; their advocacy on issues central to their health and political participation has been suppressed and punished; and they have been subjected to cruel, inhuman and degrading treatment. As a result, ... [they] live in persistent fear of harassment, arbitrary arrest and physical harm, including death.

The lawsuit seeks compensatory and punitive damages, a declaratory judgment that Lively's conduct violated the law of nations, and other appropriate relief. The New York Times, Religion Dispatches,

Russian Court Backs Government's Rejection of Olympic "Pride House"

Gay Star News reports today that a trial court in Russia has backed last year's decision by the Russian Ministry of Justice to refuse the registration of the NGO that planned to organize a "PRIDE House" for gay and lesbian athletes at the 2014 Winter Olympics in Sochi.  The court wrote in part:

The aims of the organization contradict the basics of public morality and the policy of the state in the area of family motherhood and childhood protection. The activities of the [Pride House] movement leads to propaganda of non-traditional sexual orientation which can undermine the security of the Russian society and the state, provoke social-religious hatred, which is the feature of the extremist character of the activity.

Moreover it can undermine the sovereignty and the territorial integrity of the Russian Federation due to the decrease of Russia’s population.

Such aims as creating an understanding of the necessity to fight against homophobia and the creation of positive attitudes towards LGBT sportsmen contradicts with the basics of public morality because they are directed towards the increase of the number of citizens of sexual minorities which breaches the understanding of good and evil, good and bad, vice and virtue.

A successful PRIDE House was created in Vancouver for the 2010 Olympics there.

White House Negotiations With Bishops Focuses On Definition of Religious Organization

Reuters reported yesterday that the Obama administration is quietly negotiating with representatives of the U.S. Conference of Catholic Bishops to resolve their high-profile disagreement over the administration's mandate for health insurance coverage of contraceptives. (See prior posting.) Apparently the critical issue has become the White House's narrow definition of religious organizations that are exempt from the health care insurance mandate: non-profit religious employers whose primary purpose is the inculcation of religious values and which also both employ and serve only individuals who share the groups' religious tenets. The Bishops fear that this narrow definition-- which excludes most faith-based colleges,hospitals and social service organizations-- will spread in federal law and supplant more broadly interpreted exemptions for religious institutions in other federal laws. The White House says its definition for purposes of the Affordable Care Act minimum coverage provisions is not intended to create a precedent.

Government Issues First Ever Permit To Kill Bald Eagle For Religious Purposes

In what is seen as an important vindication of Native American religious freedom, the U.S. Fish and Wildlife Service last week issued a permit to allow the Northern Arapaho tribe to kill up to two bald eagles (without eggs or nestlings) this year for religious purposes.  AP reported yesterday that while the government has previously issued permits for tribes to kill golden eagles, this is the first time that a bald eagle permit has been issued.  The step came after the tribe last year brought suit over the government's failure to grant a permit application filed nearly three years ago. The Bald and Golden Eagle Protection Act (16 USC 668a) authorizes the Secretary of Interior to issue a permit for the taking of eagles for scientific or exhibition purposes, or for the religious purposes of Indian tribes, when that is compatible with preservation of the eagle population. The government's administration of the permit system under the Bald and Golden Eagle Protection Act was unsuccessfully challenged in a long-running prosecution of a member of the Northern Arapaho Tribe who in 2005 killed a bald eagle so he could use it in his tribe's Sun Dance. (See prior posting.)

Cuban Government Launches Website For Pope's Upcoming Visit

Pope Benedict XVI is scheduled to visit Cuba March 26-28.  God Discussion reports that the Cuban government has launched a new website devoted to the Pope's upcoming visit. The website, Benedicto XVI in Cuba, carries the schedule for the visit along with numerous background articles.

Roy Moore Wins Republican Nomination For Alabama Chief Justice

CNN reports that Alabama's former Supreme Court chief justice, Roy Moore, may get his old job back.  Moore won Tuesday's Republican primary in which the current chief justice, Chuck Malone, was challenged by two contenders-- Moore and former Alabama attorney general Charlie Graddick. Once final results were in late yesterday, it became clear that Moore had avoided a run-off election by capturing just over 50% of the entire vote. Moore is best known for his attempt ten years ago to keep his 2.5 ton Ten Commandments monument in the Alabama Judicial Building which housed the Supreme Court. In 2003, a state judicial ethics panel removed Moore from office when he defied a federal court order to take down the monument. According to an AP report in March, the major issue in the primary race was whether the Alabama state courts can withstand another round of budget cuts. Moore will face Democratic candidate Harry Lyon in the November election. WBRC reports that Moore, when asked if he would attempt to return the 10 Commandments to the Court, said:

We'll not return the Ten Commandments because it would be more about me or a monument about me. That's what I'm identified with, and I think it would be detrimental to the true issue. The true issue is whether we can acknowledge the sovereignty of almighty God over the affairs of our state and our law. That I will not back down from.

India Expels Chabad Rabbi To Israel

Haaretz reported that the Indian government on Tuesday expelled to Israel a Chabad rabbi who was serving the small ancient Jewish community in Cochin. The rabbi's wife was also expelled. The Indian government charged that Rabbi Zalman Bernstein did not declare on his visa application that he would be conducting religious activities and would be trying to convert foreigners. Local newspapers reported that the rabbi was holding unusual nighttime meetings at his home, suggested he was receiving outside support and said some thought he was spying for Israel. Rabbi Bernstein suggested that the expulsion order was pressed by owners of local hotels and restaurants who disliked the competition from Chabad offering Friday evening Shabbat dinner free of charge.

Washington Court Decision Allows Signature Collection In Anti-Gay Marriage Referendum

The Olympian reports that a Washington state court yesterday ruled on the language that should be used in a proposed referendum on the state's recently enacted same-sex marriage bill. (See prior posting.) The decision means that opponents of same-sex marriage can print petitions and begin to collect signatures.  They need almost 121,000 valid signatures by June 6 for the referendum to appear on this November's ballot. In its ruling, the court agreed with the ACLU's proposed language change in the ballot description of the measure.

South Dakota Governor Signs Law Barring Government Enforcement of Religious Codes

On Monday, South Dakota Gov. Dennis Daugaard's office announced that the governor has signed House Bill 1253 (full text) which provides: "No court, administrative agency, or other governmental agency may enforce any provisions of any religious code." The ABA Journal says that the bill is aimed at Islamic law, but was worded neutrally to bolster the chances of surviving a constitutional challenge which civil rights advocates are planning to file.

Meanwhile, the Tampa Bay Times last week reported that an anti-Shariah bill (SB 1360) that passed the Florida House of Representatives died in the state Senate.

Nursing Home Settles Religious Accommodation Suit With EEOC

The EEOC announced yesterday that a consent decree has been entered in a religious discrimination lawsuit it filed against Menorah House, a Boca Raton, Florida nursing and rehabilitation facility.  The suit was filed on behalf of two Seventh Day Adventist nursing assistants who were fired after they refused to comply with management's new policy of requiring everyone to work on Saturdays.  The EEOC said that Menorah House had a duty to reasonably accommodate the nursing assistants' religious beliefs. In the settlement, Menorah House agreed to pay $125,000 in damages, revise its written policies and conduct anti-discrimination training for all employees.

Trial Begins In NASA Employee's Claim of Demotion Because of His Views On Intelligent Design

In a Los Angeles trial court yesterday, opening statements began in the high-profile lawsuit filed by former Jet Propulsion Laboratory (JPL) employee David Coppedge.  JPL operates under contract with NASA. Coppedge, a computer systems administrator, claims he was harassed and demoted for allegedly pressing his opinions favoring intelligent design and opposing gay marriage on co-workers and sharing with them DVDs promoting intelligent design. He says that subsequently he was fired for filing a religious discrimination lawsuit. According to the Los Angeles Daily News, JPL officials say that Coppedge's demotion did not affect his pay or benefits, and that his firing was part of a staff reduction. (See prior related posting.)

Victim Advocacy Group Gets Subpoenaed By Catholic Church

The New York Times today reports that in two Missouri clergy sex abuse cases, the Roman Catholic Church and lawyers for accused priests have subpoenaed the victim advocacy group Survivors Network of Those Abused by Priests (SNAP), and taken a lengthy deposition from its national director, David Clohessy.  SNAP has been subpoenaed five times in recent months, even though it is not a party in the lawsuits. One of the subpoenas asks SNAP to turn over all documents in the last 23 years that mention repressed memory, any current or former priest in Kansas City, the diocese, the priest who is alleged to have abused the plaintiffs, the John Doe plaintiff or plaintiff's attorney.  According to the Times report:

... William Donohue, president of the Catholic League for Religious and Civil Rights, a church advocacy group in New York, said targeting the network was justified because “SNAP is a menace to the Catholic Church.”

Mr. Donohue said leading bishops he knew had resolved to fight back more aggressively against the group... He said bishops were also rethinking their approach of paying large settlements to groups of victims. “The church has been too quick to write a check, and I think they’ve realized it would be a lot less expensive in the long run if we fought them one by one,” Mr. Donohue said.

However, a spokeswoman for the United States Conference of Catholic Bishops, Sister Mary Ann Walsh, said Mr. Donohue was incorrect. “There is no national strategy,” she said, and there was no meeting where legal counsel for the bishops decided to get more aggressive.

Court Awards Attorneys Fees In Christian's Challenge To Dearborn Anti-Leafleting Ordinance

Last year, the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, held unconstitutional on free speech grounds Dearborn, Michigan's leafleting restrictions that barred a group of Christians from proselytizing on public sidewalks surrounding the city's annual Arab International Festival. (See prior posting.) On remand, the district court enjoined enforcement of the leafleting restrictions.  Now, in Saieg v. City of Dearborn, 2012 U.S. Dist. LEXIS 32062 (ED MI, March 9, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 31705, Jan. 27, 2012) and ordered the city of Dearborn to also pay $1 in nominal damages and to pay plaintiffs $103,401.96 is attorneys' fees and costs.

Donor To Christian School May Remain Anonymous In RLUIPA Lawsuit

Tree of Life Christian Schools v. City of Upper Arlington, 2012 U.S. Dist. LEXIS 32205 (SD OH, March 12, 2012) is a lawsuit alleging violations of the Religious Land Use and Institutionalized Persons Act brought against the city of Upper Arlington, Ohio by a Christian school whose zoning application for a conditional use permit was denied.  The city sought in discovery to learn the name of an anonymous donor to the school who had pledged $6.5 million to purchase the property at issue. The city said it wanted to determine whether the donor was willing to contribute to purchase a different piece of land and whether the donor had the capacity to pay the portion of the pledged amount still outstanding. An Ohio federal magistrate judge agreed with plaintiff that disclosing the donor's name would violated plaintiff's 1st Amendment associational rights. It will impact both plaintiff's relationship with the donor and its ability in the future to attract contributions

British Government Reportedly Will Back Employers' Ban On Wearing Christian Cross

According to the London Telegraph last week, Christian groups in Britain are upset over the position that the government reportedly will take in a group of religious freedom cases pending in the European Court of Human Rights against Britain. Apparently in opposition to the position put forward by Britain's Equality and Human Rights Commission (see prior posting), the government will argue that because it is not a "requirement" of the Christian religion, employers may ban employees from wearing a cross at work.

UPDATE: Despite the position of the Foreign Office is its official response in the case, the Telegraph (3/13) reports that if the European Court rules against the two women who wish to wear a cross at work, Prime Minister Cameron would consider changing the law to allow at least a discreet display of the religious symbol

Poll of Today's Likely Republican Primary Voters Shows Religious Attitudes

Public Policy Polling yesterday released the results of a poll of likely Republican voters in today's Alabama and Mississippi primaries. Certain of the questions revealed interesting insights into voters' religious beliefs and attitudes:

• Q16: Are you an Evangelical Christian, or not?  In Alabama, 68% yes.  In Mississippi, 70% yes.

• Q22 Do you think Barack Obama is a Christian or a Muslim, or are you not sure? In Alabama, 14% think he is Christian, 45% think he is Muslim, 41% are not sure.  In Mississippi, 12% think he is Christian, 52% think he is Muslim, 36% are not sure.

• Q23 Do you believe in evolution, or not?  In Alabama, 26% do, 60% do not, 13% are not sure.  In Mississippi, 22% do, 66% do not, 11% are not sure.

• Q24 Do you think that interracial marriage should be legal or illegal? In Alabama, 67% say it should be legal, 21% say it should be illegal, 13% are not sure.  In Mississippi, 54% say it should be legal, 29% say it should be illegal, 17% are not sure.

Turkish Military Court Applies European Human Rights Precedents To Conscientious Objectors

A Turkish millitary court last week handed down an important decision on the rights of conscientious objectors.  Both Hurriyet Daily News and BIA News Agency report on the March 7 decision by the Malatya Military Court in the case of Muhammed Serdar Delice. While the court refused to recognize Delice as a conscientious objector-- finding that he deserted because of financial and psychological problems-- the court for the first time held that protections of the European Convention on Human Rights should be applied in conscientious objector cases. Pointing to the provisions of Art. 90 of the Turkish Constitution that provide that international agreements duly put into effect have the force of law, the Turkish court referred to last year's decision by the European Court of Human rights in Bayatyan v. Armenia holding that that Art. 9 of the European Convention on Human Rights protects military conscientious objectors. (See prior posting.)

Student May Hand Out Christmas Party Invitations

In K.A. v. Pocono Mountain School District, 2012 U.S. Dist. LEXIS 28749 (MD PA, March 2, 2012), a Pennsylvania federal district court issued an opinion explaining its denial of reconsideration of a previously granted preliminary injunction (2011 U.S. Dist. LEXIS 121250, Oct. 20, 2011) allowing a 5th grader to distribute flyers to her classmates inviting them to a Christmas party sponsored by her church. In denying reconsideration, the court held that the issue should be analyzed under the standards set out in the Supreme Court's Tinker case, rather than using a non-public forum analysis. The Legal Intelligencer reports on the decision.

Recent Articles of Interest

From SSRN:

• Meredith Render, Religious Practice and Sex Discrimination: An Uneasy Case for Toleration, (Matters of Faith, Austin Sarat, ed., Cambridge University Press, 2012).
• Howard M. Wasserman, Prescriptive Jurisdiction, Adjudicative Jurisdiction, and the Ministerial Exemption, (University of Pennsylvania Law Review PENNumbra, Vol. 160, 2012).
• John D. Inazu, The Limits of Integrity, (Law and Contemporary Problems, Vol. 75, 2012).
• Yossi Nehushtan, Granting Conscientious Exemptions: The Need to Take Sides, (Religion and Human Rights, Vol. 7, pp. 31-58, 2012).
• Roberta Rosenthal Kwall, The Lessons of Living Gardens and Jewish Process Theology for Authorship and Moral Rights, (Vanderbilt Journal of Entertainment & Technology Law, Forthcoming).
• Carl H. Esbeck, A Religious Organization’s Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment, (Engage, Forthcoming 2012).
• Beverly I. Moran, Islamic Law Meets Erisa: How America’s Private Pension System Unintentionally Discriminates Against Muslims and What to Do About It, (Vanderbilt Law and Economics Research Paper No. 12-6, March 2012).
• Or Bassok, To Die for the Empty Constitution, (March 4, 2012).
• Kenneth Stahl, Local Government, One Person/One Vote, and the Jewish Question, (Chapman University Law Research Paper No. 12-3, March 2012).
• W. Edward Afield, Getting Faith Out of the Gutters: Resolving the Debate Over Political Campaign Participation by Religious Organizations Through Fiscal Subsidiarity, (Nevada Law Review, Vol. 12, No. 83, 2011). 
• Corri Zoli, The ‘God Gap’ in International Humanitarian Law: Lessons Learned from Islamic Jurisprudence, (January 1, 2012).

From SmartCILP and elsewhere:

• Donald L.Beschle, Does a Broad Free Exercise Right Require a Narrow Definition of "Religion"?, 39 Hastings Constitutional Law Quarterly 357-390 (2012).
• Danielle N. Boaz, Dividing Stereotype and Religion: The Legal Implications of the Ambiguous References to Voodoo in U.S. Court Proceedings, 14 Scholar 251-299 (2011).
• Paul Weitzel, Protecting Speech From the Heart: How Citizens United Strikes Down Political Speech Restrictions on Churches and Charities, 16 Texas Review of Law & Policy 155-174 (2011).
• The March 2012 issue of Church & State has recently appeared.

Louisiana Appeals Court Affirms Trial Court Decisions In Church's Factional Dispute

A Louisiana state appeals court last month issued two decisions in the ongoing litigation between factions of a 130-member Baptist church. (See prior posting.) In Mount Zion Missionary Baptist Church v. Jones, (LA App., Feb. 1, 2012), the court upheld the trial court's determinations that the pastor at the center of the controversy had been properly dismissed by the church's board, and in issuing a TRO barring the fired pastor's supporters from conducting any meeting to change the make-up of the church's board. In Ambush v. Mt. Zion Baptist Church, Inc., (LA App., Feb. 22, 2012), the court upheld the appointment of a special master to hold a church election.

Recent Prisoner Free Exercise Cases

In Funderburk v. Neven, (9th Cir., March 6, 2012), the 9th Circuit upheld the dismissal of a claim by a former state prisoner that his free exercise rights were violated when he was not provided a sack lunch as part of the prison's  Ramadan meals.

In Thompson v. Smeal, 2012 U.S. Dist. LEXIS 27456 (MD PA, March 1, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 27967, Feb. 3, 2012) and rejected claims by a Catholic inmate that the Department of Corrections should designate Christmas and Easter each year as feast days and serve the same type of food that is served for feasts of other religions.

In Rich v. Buss, 2012 U.S. Dist. LEXIS 28306 (ND FL, March 4, 2012), a Florida federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 28304, Jan. 12, 2012), and dismissed a Jewish inmate's RLUIPA, free exercise and 8th Amendment challenges to Florida's refusal to provide kosher meals to inmates. Instead it offers vegan meals and meat-free alternative entrees.

In Jean-Pierre v. Bureau of Prisons, 2012 U.S. Dist. LEXIS 28737 (WD PA, March 2, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 28736, Feb.13, 2012) and dismissed a complaint by a Rastafarian inmate over the decision to remove him from the prison's Certified Religious Diet Program. The court held that the decision was reasonably related to legitimate penological interests and thus did not violate plaintiff's free exercise rights. The court also rejected plaintiff's equal protection claim.

In Myslicki v. Gage, 2012 U.S. Dist. LEXIS 29282 (WD TX, March 6, 2012), a Texas federal magistrate judge recommended dismissing as too vague a claim by a paroled inmate in a transition center that he is not allowed to attend the unspecified outside church of his choice on Saturdays or Sundays. He can attend church services at his transition center.

In Watson v. Mecklenburg County Jail, 2012 U.S. Dist. LEXIS 28360  (WD NC, March 2, 2012), a North Carolina federal district court dismissed an inmate's complaint regarding the scheduled time for Muslim Jumah prayer services and a one-time interruption of plaintiff's prayer.

In Cain v. Caruso, 2012 U.S. Dist. LEXIS 29380 (WD MI, March 6, 2012), a Michigan federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 29376, Jan. 31, 2012) and dismissed a number of claims by a former inmate who is a follower of the African Shetaut Neter Ausarain religion, but permitted plaintiff to move ahead with his damage claim for violation of his 1st Amendment free exercise rights when he was deprived of his religious diet for 8 days.

Anti-Abortion Group Sues University Over Rules Limiting Its Ability To Restrict Membership On Basis of Belief

Alliance Defense Fund announced last week that it has filed a federal lawsuit against the University of North Carolina Greensboro on behalf of a student anti-abortion group, Make Up Your Own Mind. The complaint (full text) in Make Up Your Own Mind v. Members of the Board of Trustees of University North Carolina Greensboro, (MD NC, filed 2/29/2012), challenges on 1st and 14th Amendment grounds the University's refusal to recognize MUYOM as a student organization because of noncompliance with the University's non-discrimination rules.  MUYOM limits membership to those who agree with its Statement of Faith and religious beliefs regarding the sanctity of life and sexual purity. The University says that MUYOM cannot rely on a belief-based exception in the University policy for religious organizations because the group is not a religious group. It is not affiliated with a church.

Becket Fund Becomes More Proactive In Religious Liberty Advocacy

The Huffington Post today reports on a new activism at the Becket Fund, traditionally a religious liberty advocacy group known for its defense of religious liberty across faith groups.  Under the new leadership of Wall Street trader William P. Mumma, the organization has expanded its fundraising and become more proactive in seeking out potential litigants when a religious liberty issue arises. The Becket Fund has raised its profile by bringing several lawsuits challenging the Obama administration's contraception coverage mandate under the Affordable Health Care Act. (See prior posting.)

Pope Addresses U.S. Bishops On Traditional Marriage

VIS reports on Pope Benedict XVI's remarks (full text) on traditional marriage delivered today in the Vatican to a group of U.S. bishops who who have recently competed their "ad limina" visit. The Pope said in part:

[P]articular mention must be made of the powerful political and cultural currents seeking to alter the legal definition of marriage. The Church’s conscientious effort to resist this pressure calls for a reasoned defense of marriage as a natural institution consisting of a specific communion of persons, essentially rooted in the complementarity of the sexes and oriented to procreation. Sexual differences cannot be dismissed as irrelevant to the definition of marriage. Defending the institution of marriage as a social reality is ultimately a question of justice, since it entails safeguarding the good of the entire human community and the rights of parents and children alike.

In our conversations, some of you have pointed with concern to the growing difficulties encountered in communicating the Church’s teaching on marriage and the family in its integrity, and to a decrease in the number of young people who approach the sacrament of matrimony.... 

On the practical level, marriage preparation programs must be carefully reviewed to ensure that there is greater concentration on their catechetical component and their presentation of the social and ecclesial responsibilities entailed by Christian marriage. In this context we cannot overlook the serious pastoral problem presented by the widespread practice of cohabitation, often by couples who seem unaware that it is gravely sinful, not to mention damaging to the stability of society.

Court Upholds Scientology Church Arbitration Clause

Today's Tampa Bay Times reports that in Clearwater, Florida, a Pinellas County Circuit Court judge has ruled that an arbitration agreement in a Church of Scientology contract with two former members is enforceable. Plaintiffs Lynne Hoverson and Bert Schippers were declared "suppressive" by the Church for publicly criticizing it.  The couple then sued for return of $27,583 that they had made in advance for services never received. The agreement the couple had signed designates prepayments  for services as donations and requires any claim for a refund to be decided by a panel of three active Church of Scientology members. The couple had challenged the arbitration clause, arguing that it was buried in fine print and that it did not allow them to consult with attorneys or negotiate. They say the arbitrators would not be permitted to rule in their favor by the Church. The court disagreed and upheld the clause.

The court however allowed the couple's civil case to proceed as to a refund claim for $7500 placed on account on the Church's cruise ship, because no agreement had been signed as to those funds. The court also permitted them to proceed with their claim for the return $147,183 in "freeloader debt'' they paid in 2008. The amount reimbursed the Church for training and services received by the couple's children while they were members of the Chuch's Sea Org.

Suit Challenges School District Rules Limiting Faith-Based Service Learning Credit

A federal lawsuit filed earlier this week challenges the rules that determine what sort of student activities will count toward service learning requirements of the Fairfax County, Virginia school system. The complaint (full text) in S.S. v. Fairfax County School Board, (ED VA, filed 3-6-2012), alleges that plaintiff's 1st and 14th Amendment rights were violated when the school refused to count, for purposes of remaining a member of the Thomas Jefferson High School National Honor Society, the hours she spent teaching a Sunday school class. Under the school district's rules, faith-based service counts only if it has a secular purpose and is based on a recognized need in the community. Activities must affect individuals beyond the immediate religious community and may not include preparation or participation in the performance of religious services. Alliance Defense Fund announced the filing of the lawsuit.

UPDATE: According to Fox News (3/9), shortly after this lawsuit was filed, Fairfax County school officials announced that they would reverse their decision to place plaintiff on probationary status, saying her faculty adviser was mistaken about the hours teaching Sunday School not counting. According to WUSA News, the student's attorneys will continue the suit in order to get the school's official policy rewritten and to obtain relief for any scholarship deadlines plaintiff may have missed.

5th Circuit Dismisses Disjointed Free Exercise Claim of Former City Employee

In Sawyer v. Wright, (5th Cir., March 7, 2012), the U.S. 5th Circuit Court of Appeals dismissed a free exercise claim brought against an array of church and city officials by a former employee of the city of Austin, Texas. Plaintiff, appearing pro se, claimed that the city fired him when he refused "to lie, cheat, deceive, and steal," which he considers violations of "the religion he was ordained in."  The court, describing plaintiff's pleadings as disjointed and his brief as incomprehensible, held: "Nowhere does [plaintiff] allege a coherent sequence of facts tending to show that his Free Exercise claim is plausible."

Presbyterian Church Loses Malpractice Claim Appeal Against Lawyers In Property Dispute

In Eastminster Presbytery v. Stark & Knoll, (OH App., March 7, 2012), an Ohio appeals court dismissed a malpractice claim brought against a law firm by a local Presbytery of the Presbyterian Church USA after the Presbytery lost its claim that property of a break-away congregation was held in trust for PCUSA. The Presbytery argued that had counsel included a complete and properly authenticated copy of the PCUSA 1981 Book of Order as an exhibit in support of its motion for summary judgment, it would have prevailed in the underlying case. The court of appeals agreed with the trial court that even if a copy of the Book of Order had been properly provided to the court, it would not have changed the result in the case. Despite provisions in the Book of Order stating that church property is held for the benefit of PCUSA, the break-away congregation "did not indicate by words or acts that it intended by its voluntary association with the PCUSA to create a trust over its property." The court also held that the 1st Amendment permits it to apply neutral principles of law to resolve the property dispute and does not require a court to defer to ecclesiastical documents of the parent denomination.

Argentine Court Bars Religion In Public Schools; Bishops Object

CNA reported yesterday that Catholic bishops in Argentina's Salta province are criticizing a local appeals court decision that bars Catholic religious practices in public school classrooms. The decision banned  classroom prayers, grace before meals, the reading of the Bible and the celebration of Catholic feasts in public schools. The bishops, however, asserted: "It is the duty of the public school to respect and creatively pass on the culture and identity of a people," and argued that public expression of faith is a protected right so long as it does not obstruct the functioning of the school or deny the rights of others. The bishops want religion taught in the schools, with parents having the right to opt their children out of the class.

Court Sorts Out Privilege Claims In Discovery of Diocese Documents

Thopsey v. Bridgeport Roman Catholic Diocesan Corp., 2012 Conn. Super. LEXIS 448 (CT Super. Ct., Feb. 15, 2012), involves a dispute over plaintiff's discovery of certain documents in a suit against the Bridgeport Roman Catholic diocese growing our of alleged sexual abuse of plaintiff by a priest, John Castaldo. Plaintiff sought various documents relating to what the diocese knew about the sexual proclivities of Castaldo. The court concluded that 7 of the documents at issue in some fashion seek religious or spiritual advice, aid or comfort, and are therefore protected from disclosure by a state statute protecting confidential communications with members of the clergy. The court found that a number of documents at issue concern the internal management of the diocese and not the claim of tortious conduct. Finally, as to 14 other documents, the court holds that they are not protected by a "free exercise" privilege:

Certainly, the Catholic Church finds the sexual abuse of children to be wrongful. The contribution toward, condoning or causation of such activity in no way comports with the tenets or practices of Catholicism. Government interference with the practices of the Catholic faith are not implicated in this discovery matter. Therefore, the court does not find that invocation of the free exercise privilege is separately warranted as to these 14 documents in light of the allegations of the complaint.

French Presidential Election Debate Focuses On Halal and Kosher Slaughter

The first round of the French Presidential elections are scheduled for April 22. Just as in the U.S., economic issues appear to have become sidetracked in the election battles by church-state and religious freedom issues. This week, the Washington Post, Bloomberg News and Haaretz all report that the issue of halal and kosher slaughter of meat has become a central issue in the bitter election campaign. The furor began with a claim by right-wing National Front party leader Martine Le Pen that in slaughter houses around Paris, all meat is slaughtered according to halal rules and that millions of French people are eating halal meat without knowing it.  Apparently that claim is accurate since the economics of the meat industry lead slaughter houses to use only one method of slaughter. Halal meat can be sold to general supermarkets as well as to Muslim consumers.

Sensing the appeal of the issue, President Nicolas Sarkozy on Saturday called for labels on all meat describing whether or not the animals were stunned before slaughter. Neither halal nor kosher slaughter stuns animals. After Sarkozy's statetment,  Prime Minister Francois Fillon said in a radio interview that "religions should reflect on dietary rules that don’t have much to do with the modern state of science, technology and sanitation." In the same vein, Interior Minister Claude Gueant warned against the Socialist Party's proposal to allow immigrants the right to vote in municipal elections. He said this would lead to Muslims forming majorities on local councils and their requiring halal meat in school cafeterias.

Prime Minister Fillon's remarks have particularly upset Muslim and Jewish leaders who have strongly criticized his statements. Fillon met yesterday with Jewish leaders where he said that nothing should put into question the continuation of ritual slaughter in France. Fillon will meet today with Muslim leaders.

U.S. Agrees To Kosher Food Condition For Extradition of Fugitive From Israel

As previously reported, a trial court in Tel Aviv, Israel last month ruled that a U.S. request for extradition of a convicted hit-and-run driver should be denied unless it is assured that the driver will have access to kosher food while serving his sentence. Haaretz reported today that the U.S. has agreed to the condition for extradition. U.S. authorities say that Lawrence Seth Wayne will be placed in a county jail where he can receive kosher food, until a decision is made on a more permanent facility with kosher food which would house him. [Thanks to Joel Katz [Relig & State in Israel] for the lead.]

Chabad Seeks Contempt Sanctions Against Russia In Suit Over Library Collection

In 2010, the D.C. federal district court issued a default judgement against the Russian Federation in Agudas Chasidei Chabad of United States v. Russian Federation, ordering it to return two collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States. (See prior posting.)  Now, according to Blog of the Legal Times, Chabad has filed a request for issuance of contempt sanctions (full text of motion filed 3/5/2012). The filing explains:

Chabad has made a good faith effort to negotiate with Defendants, including multiple meetings at the Russian Embassy in Washington, D.C. Unfortunately, Defendants have not complied with the Court’s judgment. Nor have Defendants agreed to return any portion of the Collection as a result of diplomatic efforts... On January 13, 2012, Russian Culture Minister Alexander Avdeyev announced at a press conference that “A constructive dialogue over the Schneerson Library will be possible only after the U.S. court reverses its decision and the claimant withdraws its lawsuit.” Defendants’ position is unacceptable.

Accordingly, Chabad respectfully requests that the Court enter an Order finding defendants ... in contempt of court and issue a significant daily or weekly monetary sanction against each them for refusing to comply with the Court’s judgment. Chabad also intends to proceed with enforcement of the Court’s judgment ... but will not seek to attach any art or objects of cultural significance subject to the immunity protections of 22 U.S.C. § 2459.