Recent Prisoner Free Exercise Cases

In Curry v. California Department of Corrections, 2012 U.S. Dist. LEXIS 38464 (ND CA, March 21, 2012), a California federal district court rejected an inmate's claim that his rights were infringed when he was not permitted to obtain scented oil for the practice of his Shetaut Neter religion. The court called for additional evidence and argument on plaintiff's request for a religious Kemetic diet.

In Contreraz v. Adams, 2012 U.S. Dist. LEXIS 38512 (ED CA, March 21, 2012), a California federal district court dismissed for failure to exhaust administrative remedies claims by a Native American inmate who observes the Olin Pyramid religion who sought a religious diet and chapel access to perform full moon rituals. The court allowed plaintiff to move ahead with his challenge to a denial of a religious exemption from grooming standards.

In Garraway v. Lappin, 2012 U.S. Dist. LEXIS 38712 (MD PA, March 21, 2012), a Pennsylvania federal district court in a lengthy opinion dismissed a series of challenges to prison practices brought by a Muslim inmate serving a life sentence as a military prisoner. At issue were chapel scheduling for group prayer, lack of a full time Sunni Muslim chaplain, alleged delay in delivery of Islamic books sent through the mail, religious diet claims, clothing and dress issues, withholding or limiting access to Islamic tapes, magazines and books, withholding of prayer oil and ceremonial items, distribution of Bible quotes by Christian inmates, the method in which funds are allocated among religious groups, denial of chapel use for teaching Arabic, and allowing non-Muslims to participate in Muslim observances.

In Diggs v. Marikah, 2012 U.S. Dist. LEXIS 38483 (SD NY, March 20, 2012), a New York federal district court permitted a Muslim inmate to move ahead with his free exercise challenge to the refusal to allow him to attend weekly congregate Jumu'ah services.

In Cole v. Jones, 2012 U.S. Dist. LEXIS 37960 (MD AL, March 21, 2012), an Alabama federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 38448, March 1, 2012) and dismissed, among other claims, an inmate's contention that his free exercise rights were infringed by restrictions on him while he was in a restricted privilege dorm that prevented him from attending church services. It reached a similar conclusion as to any RLUIPA claim.

In Hamilton v. Fisher, 2012 U.S. Dist. LEXIS 39116 (ND NY, March 22, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 39118, Feb. 29, 2012) and dismissed, with leave to amend, an inmate's allegations  that authorities refused to acknowledge his claim that he is Jewish and furnish him a kosher diet. Plaintiff failed to allege enough facts to permit the court to evaluate whether he had a valid free exercise or RLUIPA claim.

In Hall v. Skolnik, 2012 U.S. Dist. LEXIS 39684 (D NV, March 23, 2012), a Nevada federal district court rejected an inmate's claim that his rights were violated when he was denied kosher meals. The court found that plaintiff had not shown a sincere religious belief, nor did he show that the kosher meal policy was implemented with an intent to discriminate against the prison's African-American Jewish population.

In Jamison v. Davue, 2012 U.S. Dist. LEXIS 40266 (ED CA, March 23, 2012), a California federal magistrate judge dismissed, with leave to amend, an inmate's conclusory allegations that he has had difficulty obtaining kosher meals.

The March 28 Las Vegas Review Journal reports that a settlement has been reached in a class action suit brought against the Nevada Department of Corrections by an Orthodox Jewish inmate over kosher food.  Under the agreement, prison authorities will obtain rabbinic kosher certification for the prison's "common fare" diet. The parties agreed to a 6-month stay of the pending litigation while the agreement is implemented.

In Green v. Sneath, 2012 U.S. Dist. LEXIS 41199 (MD PA, March 26, 2012), a Pennsylvania federal district court rejected a Muslim inmate's free exercise and RLUIPA claims growing out of his Qur'an being left behind and accidentally thrown out when he was transferred to a different cell.  He was quickly provided with a new Qur'an, but it was not the translation he preferred.  The correct translation was eventually ordered and furnished to him several months later.

Court Rejects Religious Defense To Failure To Have Auto Insurance

In State of Wisconsin v. Gotthardt, (WI App., March 22, 2012), defendant appealed a penalty of $200 that was imposed on her for driving a motor vehicle without insurance. She claimed that the requirement to maintain automobile insurance conflicted with her sincerely held religious beliefs. The court held that defendant's 1st Amendment defense was untimely, and that in any event she had not shown that the insurance requirement was unconstitutional.

Appeals Court Says Divorced Parents' Dispute Over Baptism of Children May Be Adjudicated

In Jarrell v. Jarrell, (TN Ct. App., March 28, 2012), a father asked the court to hold his former wife in contempt for violating the Parenting Plan entered by the court in their divorce under which major decisions regarding their children's religious upbringing were to be made jointly.  The mother, Lauren Jarrell, had their two children baptized without the knowledge or consent of their father, Emmett Jarrell. During their marriage, Lauren and Emmett disagreed on whether their children should be baptized at an early age, or only when they are older. The court rejected Lauren's argument that in granting Emmett's petition, the trial court gave preference to the father's religious views over those of the mother. The court said:

Mother is correct that courts “must maintain strict neutrality in cases involving religious disputes between divorced parents[,]” and they may not “prefer the religious views of one parent over another unless one parent’s religious beliefs and practices threaten the health and well-being of the child.”.... However, simply put, this is not a “religious dispute.” In this case, the trial court was asked only to determine whether Mother’s conduct in failing to abide by the terms of the Parenting Plan warranted a finding of contempt; it was not called upon to resolve a religious dispute between the parties.

The appeals court reversed the trial court's civil contempt order, though, finding that the trial court was attempting to punish the mother rather than obtain compliance which is the function of civil contempt. But at the same time it also concluded that the trial court erred in holding that Lauren was not given adequate notice to support a criminal contempt finding. AP reports on the decision.

Ballot Language On Missouri Free Exercise Constitutional Amendment Upheld

Last year the Missouri legislature approved placing on the November 2012 ballot a proposal that would add a laundry list of religious freedom protections to the state constitution. (See prior posting.) Earlier this week, according to AP, a state trial court judge rejected a challenge to this ballot summary language for the proposal that was prescribed by the legislature:

Shall the Missouri Constitution be amended to ensure: • That the right of Missouri citizens to express their religious beliefs shall not be infringed; • That school children have the right to pray and acknowledge God voluntarily in their schools; and • That all public schools shall display the Bill of Rights of the United States Constitution.

The suit argued that the summary fails to mention that under the proposal students could refuse homework and prisoners could lose some religious rights.

Fortune 500 Company Settles EEOC Religious Accommodation Lawsuit

EEOC reports that AutoZone, Inc. has settled a religious discrimination lawsuit brought against it by the EEOC in a Massachusetts federal district court.  The suit was brought on behalf of a former Sikh employee who was harassed  by mangers and customers and who was not permitted to wear a turban or a kara (religious bracelet). The employee, Frank Mahoney, was fired allegedly because of his religion and in retaliation for seeking an accommodation and complaining about discrimination. In the settlement, the Fortune 500 auto parts distributor will pay damages of $75,000, attorneys fees, and will adopt new policies and training procedures on religious discrimination.

Suit Challenges Exclusion of Religious College From Florida Tuition Grant Program

Earlier this month, Florida Christian College and 5 of its student brought suit challenging the school's exclusion from the Florida Resident Access Grant Program that provides students at eligible private colleges $2000 per year tuition assistance. The complaint (full text) in Florida Christian College v. Shanahan, (ND FL, filed 3/8/2012) alleges that exclusion of FCC students from the program violates plaintiffs' free exercise, establishment clause, free speech and equal protection rights. The statute creating the program (FL Stat Sec. 1009.89) requires that eligible schools must have a secular purpose, and receipt of state aid by students at the institution may not have the primary effect of advancing or impeding religion or result in an excessive entanglement between the state and any religious sect. The Florida Department of Education argued that FCC does not meet the secular purpose requirement. Speak Up blog reported on the case earlier this month.

Bald Eagle Permit Was "Catch-22"; Amended Complaint Filed

Earlier this month, the issuance by the U.S. Fish and Wildlife Service of a permit to allow the Northern Arapaho Indian tribe to kill up to two bald eagles for religious purposes was widely seen as an important vindication of Native American religious freedom. (See prior posting.) However, according to an AP report today, once the tribe's attorneys read the fine print, they concluded that the permit was a "sham." The federal permit  specifically bars the tribe from killing eagles within the Wind River Indian Reservation, and also requires adherence to state law in killing the eagles. Wyoming state law prohibits all killing of eagles and applies everywhere in the state except on the Wind River Reservation.  So the permit precludes taking of eagles at the only location where state law allows it. All of this has led the tribe on behalf of its members to file an amended complaint in Northern Arapaho Tribe v. Ashe, (D WY, filed 3/30/2012) (full text of complaint) claiming that their rights under the Free Exercise Clause and the Religious Freedom Restoration Act have been infringed, and that the government's action violates the Administrative Procedure Act. The lawsuit seeks an injunction ordering the Fish and Wildlife Service to issue a permit without improper restrictions in it.

Mexico's Congress Approves Constitutional Changes On Public Display of Religion

AP reports that Mexico's Senate on Wednesday, by a vote of 72-35, approved a proposed constitutional amendment that would allow religious events to be celebrated in public as long as they do not involve electoral politics. The changes, already approved by the Chamber of Deputies of Mexico's Congress (Today's Catholic, 12/19/11), come three days after the conclusion of Pope Benedict XVI's visit to Mexico. At least 16 of Mexico's state legislatures must still approve the changes for them to take effect.

Priest's Embezzlement Conviction Not Barred By First Amendment

In Rodis v. Attorney General of Virginia, 2012 U.S. Dist. LEXIS 42650 (WD VA, March 28, 2012), a Virginia federal district court held that the 1st Amendment does not preclude civil courts from convicting a Catholic priest of embezzlement of funds contributed by parishioners.  Rejecting Rodney Rodis' petition for habeas corpus, the court held:  "Petitioner's criminal acts, even if performed under the guise of ecclesiastical duties, are not shielded by the First Amendment because petitioner's prosecution did not relate to any ecclesiastical dispute, faith, or doctrine."

Catholic School Teacher May Challenge Her Firing For Using Artificial Insemination

In Dias v. Archdiocese of Cincinnati, 2012 U.S. Dist. LEXIS 43240 (SD OH, March 29, 2012), an Ohio federal district court refused to dismiss a pregnancy discrimination and breach of contract suit brought by a former technology coordinator at two Catholic schools. Plaintiff, a non-Catholic, oversaw the schools' computer systems and instructed students on computer usage. As a non-Catholic, she was not permitted to teach religion classes. When plaintiff became pregnant, she was fired. Initially she was told her dismissal was because she became pregnant while she was unmarried, but subsequently she was informed that it was because she had used artificial insemination, which violates Catholic teachings.

The court held that the ministerial exception does not apply because plaintiff is not a ministerial employee. While plaintiff's contract stated that she would comply with the teachings of the Catholic Church, the court concluded that there is a question of fact as to whether a non-Catholic would know that artificial insemination is against Church teachings. Finally it held that plaintiff had stated a plausible claim that she was terminated because of her   pregnancy, and not because of a policy against extramarital sex enforced equally against men and women.

4 More Indicted In Amish Beard Cutting Assaults

As previously reported, last December a federal grand jury in Ohio returned a 7-count indictment charging 10 Amish men and two Amish women in five separate assaults on members of a rival Amish group. The assaults involved forcibly cutting the beards of the victims. A Department of Justice press release on Wednesday reports that a superseding indictment has now been handed down. The new indictment adds four women as defendants.

Cert Petition Filed In Ecclesiastical Abstention Dispute

In February, a petition for certiorari to the U.S. Supreme Court (full text) was filed in Lutzer v. Duncan. The petition seeks review of an Illinois state appeals court decision, Duncan v. Peterson, which refused to apply the ecclesiastical abstention doctrine to a clergyman's false light invasion of privacy claim against the church that ordained him as a minister.  It defrocked him and circulated letters to board members of plaintiff's current congregation accusing him of marital infidelity, misusing church funds and abusing alcohol. [Thanks to Eric Rassbach for the lead.]

Former Prof Charges Religious Discrimination After Discipline For Refusing To Attend Show On Gay Rights

Courthouse News Service reports on a suit filed yesterday in a state trial court in Texas by a former theater and dance faculty member at Lamar University who was graded down in her annual review because she refused, for religious reasons, to attend a student-organized show billed as a celebration of homosexuality. The complaint (full text) in Ozmun v. Lamar University, (TX Dist. Ct., filed 3/29/2012), recounts that the student show was created after a one-man show about a performer's gay lifestyle was cancelled under community pressure. Subsequently the one-man show was brought to campus, and plaintiff again refused to attend and says she was disciplined for it. Plaintiff says this amounts to religious discrimination in violation of Texas law.

Former 10 Commandments Foe Is Now Write-In Candidate Against Roy Moore

As previously reported, in March Alabama's former Supreme Court chief justice Roy Moore won the March Republican primary to again become a candidate for his old job. According to AP, his Democratic opponent Harry Lyon has run ten previous campaigns for various county and state offices, and has never won.  This has led two attorneys to launch write-in campaigns to try to keep Moore from regaining office. One of those candidates is Melinda Lee Maddox. She was one of three lawyers who sued Moore over the 5,280 pound granite Ten Commandments monument he had installed in the rotunda of the Alabama Judicial Building. (Background).

Groundbreaking Survey of Religion In Prisons Released

The Pew Research Center last week (March 22) released a ground-breaking report, Religion in Prisons-- A 50-State Survey of Prison Chaplains. The 108-page report covers the background and role of prison chaplains, and their views on the religious lives of inmates and of the correctional system. Here is an excerpt from the report's Executive Summary:

From the perspective of the nation’s professional prison chaplains, America’s state penitentiaries are a bustle of religious activity. More than seven-in-ten (73%) state prison chaplains say that efforts by inmates to proselytize or convert other inmates are either very common (31%) or somewhat common (43%). About three-quarters of the chaplains say that a lot (26%) or some (51%) religious switching occurs among inmates in the prisons where they work..... 

Overwhelmingly, state prison chaplains consider religious counseling and other religion-based programming an important aspect of rehabilitating prisoners.... 

At the same time, a sizable minority of chaplains say that religious extremism is either very common (12%) or somewhat common (29%) among inmates. Religious extremism is reported by the chaplains as especially common among Muslim inmates (including followers of the Nation of Islam and the Moorish Science Temple of America) and, to a substantial but lesser degree, among followers of pagan or earth-based religions such as Odinism and various forms of Wicca.... An overwhelming majority of chaplains, however, report that religious extremism seldom poses a threat to the security of the facility in which they work...

New Poll Surveys Public Attitudes On Mixing of Religion and Politics

The Pew Research Center last week released a new poll on public attitudes toward the mixing of religion and politics. The 19-page report (full text), released March 21, says:

A new survey finds signs of public uneasiness with the mixing of religion and politics. The number of people who say there has been too much religious talk by political leaders stands at an all-time high since the Pew Research Center began asking the question more than a decade ago. And most Americans continue to say that churches and other houses of worship should keep out of politics.

Nearly four-in-ten Americans (38%) now say there has been too much expression of religious faith and prayer from political leaders, while 30% say there has been too little.

Three New Commissioners Appointed To U.S. Commission On International Religious Freedom

Three new Commissioners have been appointed to the U.S. Commission on International Religious Freedom-- filling 3 of the 5 vacancies created by Congress' newly imposed term-limits on members. (See prior posting.)  Two of the new appointments, by Republican members of Congress, were announced in a March 26 press release. One is Princeton University Professor, Dr. Robert P. George (appointed by House Speaker John Boehner). George is also Director of the James Madison Program in American Ideals and Institutions at Princeton. A 2009 New York Times Magazine article described George as "a Roman Catholic who is this country’s most influential conservative Christian thinker."

The second Republican Congressional appointee is Dr. M. Zuhdi Jasser, president and founder of the American Islamic Forum for Democracy (appointed by Senate Minority Leader, Mitch McConnell). Dr. Jasser testified last year at the controversial hearings on radicalization in the American Muslim community conducted by Congressman Peter King. (See prior posting.)

The third new appointee, announced in a press release yesterday, is Dr. Katrina Lantos Swett, daughter of the late Congressman Tom Lantos and head of the Lantos Foundation for Human Rights. She also teaches at Tufts University. She was appointed by Senate Majority Leader Harry Reid.  Swett ran unsuccessfully in the Democratic primary for a congressional seat from New Hampshire in the 2010 elections.

Kentucky Legislature Passes Bill To Allow Amish Buggies To Use White Reflective Tape

The Kentucky legislature on Tuesday gave final passage to SB 75 (full text), a bill to give Amish horse-drawn buggies the alternative to use lanterns and white reflective tape instead of the orange triangle -- the standard slow-moving vehicle symbol-- to which Amish have religious objections. The bill passed the Senate by a vote of 38-0 last month after Jacob Gingerich who is serving time in jail for refusing to display the orange emblem wrote each member of the legislature a handwritten plea to pass the law. (AP). (See prior related posting.) The House of Representatives approved the bill on Tuesday by a vote of 75-2, sending it on to Gov. Steve Beshear  for his signature. AP reports that Beshear has not indicated whether he intends to sign the bill. [Thanks to Alliance Alert for the lead.]

Pope Asks Cuba To Make Good Friday A National Holiday

Reuters reports that Pope Benedict XVI winds up his visit to Cuba today with a public mass in Havana's Revolution Square and a meeting with Fidel Castro. In his meeting yesterday with Cuban President Raul Castro, the Pope asked that Cuba make Good Friday a national holiday. When Pope John Paul II visited Cuba in 1998, Raul's brother Fidel reinstated Christmas as a national holiday.

Tennessee Legislature Passes Bill On Teaching of Evolution and Similar Topics

The Tennessee legislature this week gave final passage to HB 368, on the teaching of scientific subjects such as biological evolution, the chemical origins of life, global warming, and human cloning that may cause debate and disputation. The bill encourages schools to help students "respond appropriately and respectfully to differences of opinion about scientific subjects required to be taught under the curriculum framework developed by the state board of education." It goes on to provide that "teachers shall be permitted to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught within the curriculum framework developed by the state board of education." The bill cautions:

This section only protects the teaching of scientific information, and shall not be construed to promote any religious or non-religious doctrine, promote discrimination for or against a particular set of religious beliefs or non-beliefs, or promote discrimination for or against religion or non-religion.

Passed by a vote of 25-8 in the Senate and 72-23 in the House, the bill goes to Gov. Bill Haslam for his signature.  Yesterday's Chattanooga Times Free Press reports that the governor is under pressure from prominent scientists to veto the bill. They claim it will allow the introduction of creationism and intelligent design into science classrooms. The issue is particularly sensitive in Tennessee because it is the site of the famous 1925 Scopes Monkey Trial.

The Inside Story On Religious Accommodation By Texas High School Basketball League

The Huffington Post on Monday carried a lengthy and interesting article detailing the legal and strategic decisions on both sides in the widely-publicized battle of a Houston, Texas Orthodox Jewish school to get officials to accommodate its Sabbath observance in a recent statewide basketball tournament. (See prior posting.) The battle pitted parents of students at the Beren Jewish Academy against the the Texas Association of Private and Parochial Schools (TAPPS), a league originally comprised of a few dozen Christian schools.  As the league expanded to over 200 schools, it added Jewish and Seventh Day Adventist (but not Muslim) ones, but without dealing with the issue of religious accommodation:

By admitting to the league but not accommodating Saturday Sabbath observers, TAPPS could cling to some semblance of its Christian and non-ecumenical identity while seeming to obey the law and not discriminate against other religions. 

The legal moves began when a parent of a Beren basketball player phoned Washington, DC lawyer Nathan Lewin, perhaps the best known litigator on behalf of Jewish interests:

The stars seemed aligned for the supposed plaintiffs and their litigators. On the one side, an intransigent and unaccommodating association of religious schools; on the other side, a squad of kids with knitted yarmulkes longing for a chance to score hoops..... [However] the school wanted nothing to do with the suit or the effort. Beren's head of school Rabbi Sinoff verbalized the reluctance this way: "We do value success in the modern world. But not at the expense of who we are -- Shomer Shabbos (strict Sabbath observers)." Rabbi Sinoff added a phrase right out of Jewish history stating, "This is about asking nicely, not about demanding a right. No demand."

However, lawyers in a Dallas law firm, enlisted by Lewin, ultimately moved ahead and filed a request for a TRO. Within two hours, TAPPS backed down and agreed to reschedule the Beren games to accommodate their Sabbath observance. However the furor is creating problems for TAPPS. The Texas Catholic Conference, whose schools comprise nearly 20% of TAPPS is reconsidering its membership in the league, both because of the way the Beren issue was handled and because of the league's refusal to admit Muslim schools.

ACLU Says FBI Collection of Intelligence From Mosques Violated Privacy Act

In a release yesterday, the ACLU said that documents it uncovered through a Freedom of Information Act lawsuit show that the FBI, thorough its San Francisco "Mosque Outreach" program, collected and stored Muslim religious leaders' and their congregants' identities, personal information and religious views and practices. The ACLU says that this violated the federal Privacy Act of 1974 that limits the ability of the government to collect and retain information about individuals' First Amendment activities. (Background ACLU memo).

Federal Tax Claim Should Not Be Heard By Ecclesiastical Court

In United States v. Augustine, 2012 U.S. Dist. LEXIS 40792 (D MN, March 26, 2012), a Minnesota federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 40769, March 2, 2012) and denied taxpayer defendants' motion to remove the case to the "Ecclesiastical Court of Justice."  The court reasoned:

Here ... the Court is not presented with disputes over church polity or church administration. Instead, this case is a suit brought by the United States to obtain payment of taxes from the Augustines. This determination in no way involves any question of church doctrine or hierarchy. Therefore, the First Amendment does not require that the United States' claims against the Augustines be heard in an ecclesiastical court.

Trial Court Strikes Down Oklahoma School Voucher Program

An Oklahoma state trial court judge yesterday, in a ruling from the bench, struck down Oklahoma's school voucher program for special needs students, finding that the program violates the state Constitution's ban on use of public funds to benefit any sectarian institution. (Constitution, Art. II-5). 38 of the 40 schools eligible to enroll students under the program are Christian schools. Public school officials have strongy opposed the program, seeing it as the first step toward a broader voucher program.  AP and the Broken Arrow Ledger both report on the decision. The decision is likely to be appealed directly to the Oklahoma Supreme Court under a provision that allows cases of statewide importance to go that route. (See prior related posting.)

Cert. Filed In 3 Church Property Cases

Anglican Curmudgeon reported last week that petitions for certiorari to the U.S. Supreme Court have been filed this month in three cases involving property disputes between parent churches and break-away congregations. At issue in each of the cases is a holding that under the neutral principles of law doctrine, the break-away church's property was held in trust for the parent church.  Two of the decisions came from the Georgia Supreme Court (see prior posting)--  Rector, Wardens and Vestrymen of Christ Church in Savannah v. Bishop of the Episcopal Diocese of Georgia, Inc. (full text of cert. petition) and Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc. (full text of cert. petition).

The third case is Episcopal Church in the Diocese of Connecticut v. Gauss. In the case, the Connecticut Supreme Court in an Oct. 11, 2011 opinion (full text) held that the Dennis Canon applies in the case to establish an express trust of church property in favor of the Episcopal Church and the Diocese of Connecticut. The petition for certiorari (full text) was coordinated with the Christ Church petition. All of the cases raise the same question, framed in the Episcopal Church cases as follows:

Whether a trust allegedly imposed on local church property by provisions in denominational documents must be treated as legally cognizable under the “neutral principles” doctrine of Jones v. Wolf, 443 U.S. 595 (1979), and the First Amendment, even where such provisions do not satisfy generally applicable rules of state property and trust law.

Tunisia's Constitution Will Not Enshrine Shariah

Despite pressure from harder-line Islamist parties to enshrine Shariah law into Tunisia's new Constitution (see prior posting), the moderate Islamist Ennahda party has announced that the first article of the new constitution will remain the same as that in the current constitution:

Tunisia is a free, sovereign and independent state, whose religion is Islam, language is Arabic and has a republican regime.

The Ennahda party holds 40% of the seats in the new Constituent Assembly, and has forged an agreement with secular parties to reject demands for this kind of constitutional change. According to AP, the founder of the Ennahda Party said at a press conference:

We do not want Tunisian society to be divided into two ideologically opposed camps, one pro-Shariah and one anti-Shariah. We want above all a constitution that is for all Tunisians, whatever their convictions."

Suit Challenging Mormon Influence on Utah's Liquor Policy Dismissed With Leave To Amend

As previously reported, Utah's hospitality trade group has sued to challenge a new law that eliminates discount pricing of alcoholic beverages offered by social clubs and ties the number of liquor licenses to population and number of police officers. Part of the suit questions the influence of the Mormon Church on the state's alcohol policy.  The Salt Lake Tribune reports that in a ruling from the bench yesterday, the court dismissed the lawsuit, giving plaintiffs 20 days to file an amended complaint describing specific harm to restaurant and bar owners from the new law. It also reports:

In another aspect of the lawsuit, [Judge Bruce] Jenkins brushed aside claims by the association that officials from The Church of Jesus Christ of Latter-day Saints had unduly influenced state lawmakers in passing restrictive liquor laws, saying Mormons have a right to consult with legislators....

In his ruling from the bench, Jenkins said that "since territorial days in Utah, there has always been an interest in alcohol," noting that Mormon colonizer Brigham Young pushed for an inspector of spirits to ensure quality controls in the manufacture of alcohol.

Suit Challenges Pennsylvania's "Year of the Bible" Resolution

The Freedom From Religion Foundation announced yesterday that it had filed a federal lawsuit challenging the constitutionality of a resolution passed by the Pennsylvania state House of Representatives that declares 2012 to be "The Year of the Bible." (See prior posting.) The complaint (full text) in Freedom From Religion Foundation, Inc. v. Saccone, (MD PA, filed 3/26/2012), alleges that the sponsor of the resolution intended it to recognize an integral relationship between church and state. The suit asks for a declaration that the resolution violates the Establishment Clause, an order barring further publication or public distribution of the resolution, and an order declaring that the theocratic principles of the Bible do not constitute the official, preferred, or endorsed religion of Pennsylvania. Yesterday's Washington Post reports on the decision.

Supreme Court Denies Cert. In Two Religion In School Cases

Yesterday the U.S. Supreme Court denied certiorari in Nampa Classical Academy v. Goesling, (Docket No.  11-786, cert. denied 3/26/2012). (Order List). In the case, the 9th Circuit upheld Idaho's decision to bar publicly funded charter schools from using religious texts in the classroom, even for teaching of secular subjects.  The 9th Circuit held that the First Amendment’s speech clause does not give charter school teachers, students, or parents a right to have such texts included as part of the school curriculum. (See prior posting.) KBOI2 reports on the Supreme Court's denial of review.

The Supreme Court also denied review in Johnson v. Poway Unified School District, (Docket No. 11-910, cert. denied 3/26/2012). (Order List). In the case, the 9th Circuit rejected claims by a high school calculus teacher that his California school district violated his free speech rights, as well as the Establishment Clause and Equal Protection clause, when it required him to remove large banners he had posted in his classroom that carried historic and patriotic slogans, all mentioning God or the Creator. (See prior posting.)

Supreme Court: Courts Have Jurisdiction Over Congress vs. State Department On Jerusalem Listing

The U.S. Supreme Court today, in Zivotofsky v. Clinton, (Sup. Ct., March 26, 2012), held that the political question doctrine does not prevent federal courts from ruling in a dispute between Congress and the State Department over which branch of government may control the content of passports.  At issue is the State Department's determination that the city of Jerusalem is still disputed territory, so that Americans born in Jerusalem are to have "Jerusalem", not "Israel", listed as their place of birth. In a 2003 statute, Congress mandated that those born in Jerusalem would now have the option of listing Israel as their place of birth.  The Executive Branch claims that this statute unconstitutionally interferes with the President's constitutional authority to conduct the country's foreign affairs.  Today's decision does not decide that dispute. It only holds that the lower courts may now tackle the question.  The D.C. Circuit had held that the court could not get to that issue because the political question doctrine deprived them of jurisdiction over it. However, Chief Justice Roberts, writing for 6 justices, said that all the court is being asked to do is to decide the constitutionality of the Congressional statute.

The case will likely be remembered primarily for its discussions of the nuances of the political question doctrine. In a concurring opinion, Justice Sotomayor had a different view of the meaning of the political question doctrine. Justice Breyer agreed with her general approach to the political question doctrine, but, in a dissent, disagreed as to its application to the facts of this case. Justice Alito also wrote a concurring opinion. The Washington Post reports on the decision. [Thanks to Joel Katz (Relig & State in Israel) for the lead.]

Bankruptcy Code Limit On Deducting Tuition Is Not Free Exercise Infringement

In In re Meyer, (Bankr. ED WI, March 22,2012), a Wisconsin federal bankruptcy court upheld the constitutionality of a provision in Title 7 of the Bankruptcy Code that limits the amount of private school tuition that may be included in the computation of allowable living expenses and the determination of whether granting bankruptcy relief would be abusive.  7 USC 707(b) limits the tuition amount to $1775 per year per child. Here the debtors, who sent their children to a Catholic parochial school with higher tuition, argued that the limit forced them to choose between the free exercise of religion and their right to a discharge in bankruptcy. But the court rejected debtors' free exercise argument. It said in part:

the law is not discriminatory in its object or purpose; the Bankruptcy Code's means test has a purely economic purpose and neither advances nor inhibits religion. And finally, the actual operation of the statute does not target the practices of a particular religion for discriminatory treatment.... 

While the debtors have the right to the free exercise of religion and the right to direct the education and upbringing of their children, that right is not independent of their personal economic limitations and choices. There is no duty of either the government or the debtors' creditors to fund their religious choices.

Recent Articles of Interest

From SSRN:

• Robert A Kahn., Who’s the Fascist? Uses of the Nazi Past at the Geert Wilders Trial, (U of St. Thomas Legal Studies Research Paper No. 12-10, 2012).
• Michael Heise and Gregory C. Sisk, Free Exercise of Religion Before the Bench: Empirical Evidence from the Federal Courts, (U of St. Thomas Legal Studies Research Paper No. 12-07, 2012).
• Sahar F. Aziz, Countering Religion or Terrorism? Selective Enforcement of Material Support Laws Against Muslim Charities, (Institute for Social Policy and Understanding, Policy Brief #47, September 2011). 
• Oren Gross, Violating Divine Law: Emergency Measures in Jewish Law, (Perspectives on Perogative, B. Kleinerman, C. Fatovic, eds., Oxford University Press, 2012).
• Salim Farrar, Accommodating Islamic Banking and Finance in Australia, (University of New South Wales Law Journal, Vol. 34, No. 1, pp. 413-442, 2011).

From SmartCILP:

• Brian Sites, Religious Documents and the Establishment Clause, 42 University of Memphis Law Review 1-71 (2011).
• Erica Weitzman, Beyond the Legality Principle: Sacher-Masoch's Economies of "Jewish Justice," [Abstract], 23 Law & Literature 442-470 (2011).
• Islamic Law and Islamic Legal Professionals in Southeast Asia. Introduction by Mark E. Cammack, R. Michael Feener and Clark B. Lombardi; articles by Clark B. Lombardi, R. Michael Feener, Mark E. Cammack, Euis Nurlaelawati, Abdurrahman Rahim, Ratno Lukito, Farid S. Shuaib, Najibah M. Zin, Amanda Whiting, Ahmad Nizam bin Abbas, Muhammad Haniff Hassan, Sharifah Thuraiya Su'ad Ahmad Alhabshi and Nik Hasyila Bte Nik Ibrahim. 21 Pacific Rim Law & Policy Journal 1-221 (2012).
• Religion and Bankruptcy: Perspectives Thereon and Treatment Therein. Articles by Keith Sharfman, G. Ray Warner, Geoffrey P. Miller, Theresa J. Pulley Radwan, Haider Ala Hamoudi, Lyman Johnson and Steven H. Resnicoff. 19 American Bankruptcy Institute Law Review 453-584 (2011).

UN Human Rights Council Adopts By Consensus 2 Religious Liberty Resolutions

Last week, the United Nations Human Rights Council adopted two resolutions on religious liberty. (UN Watch list of resolutions.) Both were adopted without a formal vote.  The first (press release 3/22) was a resolution introduced by Denmark on behalf of the European Union titled Freedom of religion or belief.  The second (3/23) was a resolution submitted by Pakistan on behalf of the Organization of the Islamic Conference, titled Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief. In a press release, Human Rights Watch applauded the fact that again this year, like last year, the resolution omits any reference to the controversial concept of "defamation of religion."

Recent Prisoner Free Exercise Cases

In Sisney v. Reisch, (8th Cir., March 19, 2012), the 8th Circuit agreed with the district court that a Jewish prisoner was not entitled to compensatory damages for authorities' refusal to permit him to erect and eat his meals in a Sukkah during the holiday of Sukkot. The PLRA permits damages only if there has been physical injury.  The 8th Circuit also agreed that defendants were entitled to qualified immunity.


In Munoz v. Tilton, 2012 U.S. Dist. LEXIS 35412 (ND CA, March 15, 2012, a California federal district court allowed an inmate to move ahead with his claim that his free exercise and RLUIPA rights were infringed when authorities withheld religious CDs mailed to him because they were not from an approved vendor.


In Black v. Walker, 2012 U.S. Dist. LEXIS 35076 (MD GA, March 15, 2012), a Georgia federal district adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 35142, Feb. 13, 2012) and permitted a Muslim inmate to move ahead with his complaint that he has been disciplined for refusing to shave his beard.

In Kempvanee v. Skolnik, 2012 U.S. Dist. LEXIS 34858 (D NV, March 14, 2012), a Nevada federal district court adopted a magistrate's recommendations 2012 U.S. Dist. LEXIS 34857 (Feb.13, 2012),  and dismissed free exercise and RLUIPA claims by an inmate who practices the Asatru religion. Plaintiff objected to confiscation of his cardboard religious altar and refusals to permit him to use the sweat lodge/sauna.

In Soria v. Nevada Department of Corrections, 2012 U.S. Dist. LEXIS 33956 (D NV, March 14, 2012), a Nevada federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 33953, Feb. 7, 2012) and dismissed a Jewish inmate's claim that his rights were infringed when authorities would not furnish him outdoor space and materials or funds for a Sukkah.

In Lute v. Johnson, 2012 U.S. Dist. LEXIS 36179 (D ID, March 16, 2012), a Jewish inmate alleged that he was wrongfully denied a kosher diet. The Idaho federal district court refused to dismiss his claim at this time, but gave him 10 days to submit evidence of the sincerity of his religious beliefs.

In Smith v. Perlman, 2012 U.S. Dist. LEXIS 36642 (ND NY, March 19, 2012), a New York federal district court permitted a Muslim plaintiff to move ahead with has claim that while in keeplock he was wrongly denied permission to attend congregate religious services. However it dismissed his complaint that on one occasion he was not taken to a Saturday study group. The magistrate's recommendation in the case is at 2012 U.S. Dist. LEXIS 36838, Feb. 28, 2012.

In Funtanilla v. Williams, 2012 U.S. Dist. LEXIS 36808 (ED CA, March 16, 2012), a California federal district court permitted a Seventh Day Adventist inmate to move ahead with his claims that he was not permitted to place a copy of the Ten Commandments above his cell door, he was not provided with enough food so that he did not have to walk on the Sabbath, and was not allowed to attend group services. His claim as to lack of a pastor on Saturdays was dismissed.

Pope Begins Visit To Mexico and Cuba

Pope Benedict XVI began his visit to Mexico and Cuba on Friday. (See prior related posting.) While on his way, he followed the tradition is sending telegrams from the Papal plane to the leaders of the countries he was flying over. (Full text of English language telegrams.) His messages were sent to the leaders of Italy, France, Great Britain, Ireland, Denmark,  Canada and the United States. Zenit reports on the Pope's press conference on board his plane covering topics such as violence in Mexico, liberation theology and liberty in Cuba. The Pope's first speech in Mexico was at the welcoming ceremony in Guanajuato (full text of remarks.) The Pope made reference in his remarks to freedom of religion. Subsequently, according to MSN News, a spokesman expanded on that theme, tying it to the debate in Mexico over proposed legislation (already approved by the Lower House) that would end the restriction on religious ceremonies in public places and the ban on religious involvement in politics. Opponents say the government is using the Pope's visit to promote the legislation and also criticize the Pope for visiting just a week before campaigning starts for the July 1 general elections.

Secularist Rally On National Mall Draws Thousands

Billed by supporters as "the largest gathering of the secular movement in world history," yesterday between 10,000 and 20,000 people gathered on the National Mall in Washington for the Reason Rally according to a report by Metro Weekly. The featured speaker was British author and scientist Richard Dawkins. No current politicians spoke at the rally, but former Iowa Senator Tom Harkin and former California Representative Pete Stark sent greetings.

Indian Court Dismisses Petition By Woman Who Married A Hindu But Claims She Retained Her Zoroastrian Religion

A court in India has dismissed a petition by a Parsi (Zoroastrian) woman who had married a Hindu man and who wanted a court order that would assure her right to enter Parsi religious places to witness the last rites for her parents when they die.  The Valsad Parsi Anjuman Trust had previously barred another woman under similar circumstances from attending her parents' last rites at a fire temple and tower of silence.  Indian Express and Ahmedabad Mirror reported yesterday that a 3-judge panel of the Gujarat High Court dismissed the petition.  Two of the three judges held that there is a presumption under the Special Marriage Act that a woman acquires the religion of her husband, unless she obtains a court declaration that she has maintained her prior religion. Justice Kureshi, while concurring in the dismissal of the petition, disagreed with the majority on the question of whether the wife should be presumed to have changed her religion.

Allowing Bishops To Limit Uses of Trafficking Victims Act Funds Violates Establishment Clause

In American Civil Liberties Union of Massachusetts v. Sebelius, (D MA, March 23, 2012), a Massachusetts federal district court held that the Department of Health and Human Services violated the Establishment Clause when, in selecting the U.S. Council of Catholic Bishops to administer funds under the Trafficking Victims Protection Act, it permitted USCCB to impose religious restrictions on use of grant funds. The Bishops prohibited grantee subcontractors from using grant funds to refer trafficking victims for abortion services or contraceptive materials. After concluding that plaintiffs had standing and that the case was not moot despite the fact that the HHS contract with USCCB had expired, the court found Establishment Clause problems with the arrangements.  Permitting USCCB to place a religiously motivated restriction in contracts with grantees amounts to a governmental endorsement of a religious belief. HHS, in delegating to a religious organization the authority to exclude certain services from government funding provides a significant symbolic benefit to religion.  Religion Dispatches reports on the decision. (See prior related posting.)

Russian Court Rejects 2nd Narrower Attempt To Ban Bhagavad Gita Commentary

According to The Hindu, earlier this week a Russian court for a second time rejected attempts by prosecutors to ban the Russian translation of the book, Bhagavad Gita As It Is.  As previously reported, in December a court in Tomsk dismissed an attempt to classify the book as extremist literature. Following that, the prosecutor changed the petition to seek a ban not the text of the Bhagavad Gita but only on the Russian translation of the comments to it written by A.C Bhaktivedanta Swami Prabhupada.  However the court also rejected this attempt.

Colorado AG Sues Religiously Sponsored Homeless Shelter For Misusing Contributions

The Colorado Attorney General's office announced Thursday that it has filed suit against Full Spirit Ministries (a charity that operates a homeless shelter), its CEO Richard Thebo and several board members claiming that they misused $31,000 in charitable contributions. The complaint (full text) in State of Colorado v. Full Spirit Ministries, (CO Dist. Ct., filed 3/14/2012), claims that defendants violated Colorado's Charitable Solicitations Act and its Consumer Protection Act by using charitable funds for improvements and mortgage payments on the homes of Thebo and his son.  Defendants claimed these homes were used as halfway houses, but the onlly homeless individuals that lived at Thebo's home were his female companions. The suit alleges that funds were also used for other personal and business expenses of defendants. The suit also claims that the charity made misrepresentations to donors regarding the number of people served. According to today's Coloradan, defendants say that the government is improperly meddling in the decision of a religious organization as to how to spend its funds to advance its mission.

University Ends Scheduling of Breaks Around Religious Holidays

Christian Post reports today on the decision by New York's Stony Brook University to end the practice of scheduling the academic calendar around major Jewish and Christian holidays. In the past, the school closed for Good Friday, Rosh Hashanah and Yom Kippur. It will no longer do so, and will end the practice of scheduling Spring Break to always coincide with Easter and Passover. Instead Spring Break will be the seventh week of the semester. The school says it is ending the practice that honored only some religions. However the American Center for Law and Justice says that the change demonstrates hostility toward religion and fails to accommodate religious practices.

Religious School Not Exempt From Unemployment Compensation Coverage

In Imani Christian Academy v. Unemployment Compensation Board of Review, (Commwlth. Ct. PA, March 21, 2012), a Pennsylvania appeals court, in a 2-1 decision held that a Christian school which was independent from the church that founded it, but had overlapping personnel, is not exempt from the Pennsylvania unemployment compensation statute. While the statute exempts organizations operated primarily for religious purposes, the court upheld the finding of the Unemployment Compensation Review Board  that the school was operated primarily for educational purposes.

Non-Liturgical Navy Chaplains Can Move Ahead On Some Claims, But No Reconsideration of Establishment Clause Ruling

In In re Navy Chaplaincy, (D DC, March 21, 2012), is another chapter in the long-running litigation by chaplains, endorsing agencies and churches claiming that the Navy discriminates against members of “non-liturgical” religions in its promotion, retention and separation  of chaplains. In this decision, the DC federal district court refused to amend its 2002 decision that plaintiffs had not shown that there was a violation of the Establishment Clause when the Navy allowed chaplains to rate other chaplains and permitted more than one chaplain to sit on a chaplain selection board. It also dismissed several other claims. However the court permitted plaintiffs to move ahead with various challenges to the Navy's chaplaincy accession, retention, promotion and selective early retirement process, as well as challenges to alleged prejudice in the disciplinary system. (See prior related posting.)

California Mosque Sues Over Zoning Denial

Annenberg TV News yesterday reported that in Los Angeles, California, the Council on Islamic American relations has filed a lawsuit challenging the city of Lomita's refusal to grant a permit for a renovation project for the South Bay Islamic Center. The city says the project would violate building codes, require too many zoning changes and would not fit in well with the neighborhood. Plaintiffs charge religious discrimination.

Recent Prisoner Free Exercise Cases-- Week's Second Installment

In Washington v. Caldwell, 2012 U.S. Dist. LEXIS 33670 (ED MI, March 12, 2012), a Michigan federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 33657, Feb. 21, 2012), and permitted an inmate to file an amended complaint in a case in which plaintiff argued that even though he was a Protestant, he should have been allowed to participate in the prison's Ramadan fast.

In McKinnedy v. Kee-Lippe, 2012 U.S. Dist. LEXIS 33246 (D SC, March 13, 2012), a South Carolina federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 33823, Jan. 30, 2012), and dismissed an inmate's complaint that his meals were not scheduled so he could participate in the last day of the Ramadan fast and he was not permitted to attend the Eid feast at the end of Ramadan.

In Priddy v. Garman, 2012 U.S. Dist. LEXIS 34558 (WD VA, March 14, 2012), a Virginia federal district court held that prison authorities did not violate the Establishment Clause when they permitted Muslim inmates to conduct group prayers in common areas of the prison.

In Myers v. Burdick, 2012 U.S. Dist. LEXIS 33061 (ED WI, March 13, 2012), a Wisconsin federal district court refused to issue a preliminary injunction in the case of an inmate seeking access to tarot cards and a companion book in order to practice his religion. Plaintiff's discovery motions for the book were also denied. UPDATE: Subsequently the court denied a motion for reconsideration, 2012 U.S. Dist. LEXIS 114998, Aug. 15, 2012.

In Cherry v. Platt, 2012 U.S. Dist. LEXIS 33129 (WD NC, March 13, 2012), a North Carolina federal district court rejected an inmate's claim that jail food service workers did not give him a snack bag on one occasion to cause him to stop observing his Ramadan fast.

In Belton v. Betzhold, 2012 U.S. Dist. LEXIS 34015 (ED WI, March 14, 2012), a Wisconsin federal district court permitted an inmate who says he is an ordained Baptist minister to challenge on free exercise grounds and under RLUIPA supervision and sex offender rules that prevent him from attending religious services or gatherings without prior approval and bar him from acting in a position of authority at any religious organization.

In Solomon v. Michigan Department of Corrections, 2012 U.S. Dist. LEXIS 34271 (WD MI, March 14, 2012), a Michigan federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 34269, Feb. 17, 2012) and dismissed complaints by an inmate that Moorish Science Temple of America services were scheduled on Saturday mornings instead of Fridays.

Hebrew Charter Schools Walk Church-State Line

New York Jewish Week yesterday carried a lengthy article on the 4 (soon to be 5) Ben Gamla Hebrew charter schools in Florida. The article says in part:

As taxpayer-funded institutions, the Ben Gamla schools — which collectively enroll nearly 1,400 children this year — do not teach religion. Classrooms have been carefully stripped of mezuzahs and other religious symbols, enrollment is open to children of all backgrounds and recruitment for Jewish after-school programs is not allowed inside the school. Indeed, when it comes to church-state separation, these schools adhere strictly to the letter of the law. However, they arguably push as close to the border of what’s allowable as possible, and some of their practices might raise a few eyebrows....

Of potential concern to church-state watchdogs are the various Jewish after-school programs that have sprung up to serve Ben Gamla students — programs at Hollywood and Kendall take place in the exact same facilities where school is held.... 

[B]ecause Ben Gamla, like many other charter schools, rents space, and does not occupy government-owned buildings, ... the school officially has no control over who uses its facilities when its lease (allowing it access only during the school day) is not in effect. While a public school has to provide equal access to all groups seeking to rent its facilities after hours, Ben Gamla’s landlords are apparently under no such legal requirement; they can rent to whomever they choose, provided they do not run afoul of fair housing laws.

New Money Laundering Concerns About Vatican Bank

International Business Times yesterday reported that the Institute for Works of Religion (IOR)-- also known as the Vatican Bank-- is facing a possible money-laundering scandal as JP Morgan Milan takes steps to close IOR's account with it. IOR has failed to provide JP Morgan with information about the source of 1.8 billion Euros that has been deposited in the account during the last 18 months. Apparently the funds were swept out of the account daily into an IOR account in Germany. Italian officials in 2010 began investigating IOR for money laundering (see prior posting). The Vatican adopted new anti-money laundering laws in 2010. Those laws took effect last April. (See prior posting.)

Christian Churches Sue In Israel Challenging Discriminatory Property Tax Law

YNet News reported last week that 5 foundations representing Christian communities in Israel have petitioned Israel's High Court of Justice challenging changes made in 2010 to Jerusalem's municipal tax laws. Under those amendments, all the properties of synagogues, including space used for commercial purposes, are exempt from real estate tax. However, for other religions, only prayer halls are exempt. Other parts of their facilities, such as classrooms, offices and event halls, are taxable. The suit alleges that this unequal treatment violates Israel's Basic Law: Human Dignity and Liberty. The suit asks for the court to order the broad exemption applicable to synagogues to be extended to churches as well, or alternatively for the court to invalidate the broader exemption for synagogues. Two Knesset members, fearing that the court might take the latter route, have introduced legislation to expand the broad exemption to all religions. [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

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.