Recent Articles of Interest

From SSRN:

• Jill I. Goldenziel, Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts, (American Journal of Comparative Law, Forthcoming).
• Jeremy Waldron, What is Natural Law Like? (May 17, 2012).
• Michael Stokes Paulsen, The Priority of God (a Theory of Religious Liberty), (Pepperdine Law Review, 2012, Forthcoming).
• Erica A. Holzer, Defense of Marriage Acts: A Fifty State Survey, (March 5, 2012).
• Erica A. Holzer, DoMA Statutes and Same-Sex Divorce Litigation, (March 5, 2012).
• Pramudya A. Oktavinanda, Choice of Financing Schemes in Islamic Finance Industry: Failed Legal Formalism and Economic Inefficiencies, (May 14, 2012).

From SmartCILP:

• Pascale Fournier, Pascal McDougall and Merissa Lichtsztral, Secular Rights and Religious Wrongs? Family Law, Religion and Women in Israel, 18 William & Mary Journal of Women & Law 333-362 (2012).
• Janine Marie Idziak, Forgoing Drugs on Grounds of Cost: A Perspective from Catholic Health Care Ethics and Social Teaching, 13 Marquette Elder's Advisor 89-105 (2011).
• David E. Steinberg, The Myth of Church-State Separation, 59 Cleveland State Law Review 623-644 (2011).

Recent Prisoner Free Exercise Cases

In Mitchell v. Quarterman, (5th Cir., May 15, 2012), the 5th Circuit rejected an inmate's religious objections to a prison's policy of permitting female guards to monitor male inmates while they shower and use the rest room.

In Miller v. Collier, 2012 U.S. Dist. LEXIS 67562 (D MD, May 15, 2012), a Maryland federal district court rejected a claim by an inmate who had been involuntarily committed to a psychiatric hospital that his free exercise rights were violated by the temporary confiscation of a cross pendant and a metal rope necklace. The cross was later returned to him on a string.

In Taylor v. Hubbard, 2012 U.S. Dist. LEXIS 67853 (ED CA, May 15, 2012), a California federal magistrate judge permitted an inmate to proceed with his free exercise and RLUIPA challenges to prison rules that prevented him from having tobacco to use in his Wheel of Love Ceremony. The rules limited him to purchasing religious products from a single vendor, limited the amount that could be purchased, and prohibited him from having tobacco in his cell or on his person.

In Jackson v. Thomas, 2012 U.S. Dist. LEXIS 67821 (CD CA, May 15, 2012), a California federal district court adopted a magistrate's recommendation to dismiss (2012 U.S. Dist. LEXIS 67838, April 24, 2012), agreeing that an inmate sentenced to a state hospital as a sexually violent predator had not substantiated his allegation that he was denied the right to attend religious services during the period that his access level was reduced.

In Solomon v. Department of Financial Services, 2012 U.S. Dist. LEXIS 67479 (ND FL, May 15, 2012), a Florida federal district court adopted a magistrate's recommendations (2012 U.S. Dist LEXIS 67480, April 9, 2012) and dismissed a suit in which an inmate claimed 8th Amendment and free exercise violations after he developed paranoia about prison food following an incident in which he found meat mixed in with his supposedly vegan food.

In Gillum v. Cate, 2012 U.S. Dist. LEXIS 68661 (ED CA, May 16, 2012), a California federal magistrate judge rejected an inmate's habeas corpus petition in which the inmate claimed that the California Board of Parole Hearings violated the Establishment Clause by denying him parole based on his failure to attend a religious-based Alcoholics Anonymous program. Petitioner had not objected to attending, and he could have attended alternative programs.

In Doss v. Maples, 2012 U.S. Dist. LEXIS 68292 (ED AR, May 16, 2012), an Arkansas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 68294, Feb. 29, 2012) and permitted an inmate to proceed with her free exercise and equal protection challenges to the prison mail room's seizing her copy of "Strong's Concordance," which she needs to practice her religious beliefs.

In Mootry v. Flores, 2012 U.S. Dist. LEXIS 68615 (ED CA, May 15, 2012), a California federal magistrate judge recommended permitting a Muslim inmate to proceed with his free exercise claim that Muslim prisoners were denied Jumu'ah services. Dismissal was recommended as to various other claims, including failure to provide a Muslim or inmate chaplain.

In Sweet v. Northern Neck Regional Jail, 2012 U.S. Dist. LEXIS 68513 (ED VA, April 18, 2012), a Virginia federal district court rejected a Muslim inmate's challenge to a jail policy that prohibits Muslims from praying in Arabic when inmates from different housing units and of different security levels are together.

Article Explores Impact of Mormonism On Romney's Political Beliefs

Today's New York Times carries a long front-page article on the importance to presumptive Republican presidential nominee Mitt Romney of his Mormon religious faith.  Romney's views in numerous areas are depicted as an application of Mormon religious teachings to the secular realm:

Mr. Romney’s penchant for rules mirrors that of his church, where he once excommunicated adulterers and sometimes discouraged mothers from working outside the home. He may have many reasons for abhorring debt, wanting to limit federal power, promoting self-reliance and stressing the unique destiny of the United States, but those are all traditionally Mormon traits as well.

Outside the spotlight, Mr. Romney can be demonstrative about his faith: belting out hymns... while horseback riding, fasting on designated days and finding a Mormon congregation to slip into on Sundays, no matter where he is....

... [W]holesomeness is deeply authentic to Mr. Romney, whose spiritual life revolves around personal rectitude. In Mormonism, salvation depends in part on constantly making oneself purer and therefore more godlike....

Having a higher purpose is part of what motivates Mr. Romney, many of those close to him say, and gives him the wherewithal to suffer the slings and arrows of political life..... And while voters tend to see Mr. Romney as immensely fortunate, those close to him say that he never forgets he is a member of an oft-derided religious minority. 

Muslim Summer Camp Entitled To Tax Exemption

In Camp Retreats Foundation, Inc. v. Township of Marathon, (MI App., May 15, 2012), a Michigan state appellate court reversed the state's Tax Tribunal and found that a Muslim summer camp is entitled to a property tax exemption as a charitable institution.  The Tax Tribunal had held that the camp primarily promoted sports and recreation. The court disagreed, finding that the camp qualified under the definition of a charity:

Despite the articles' emphasis on athletic activities for youth, Camp Retreats' central focus is on providing the Islamic community with religious experience in a camp environment..... Contrary to the Tribunal’s reasoning, the presence of fences on the property and signs warning against trespassing bear no relationship to whether Camp Retreats offers its charity generally and without restriction.

Volokh Conspiracy has more on the case. [Thanks to Steven H. Sholk for the lead.]

2 New USCIRF Appointments Announced

According to a press release issued on Thursday by the U.S. Commission on International Religious Freedom two new appointments to the 9-member Commission have recently been made. On May 11, President Obama announced his appointment of the Reverend William J. Shaw to his second term on the Commission.  On May 15, Speaker of the House John Boehner announced his appointment of lawyer and foreign policy expert Elliott Abrams.

Contribution To Church Denied Deductibility For Inadequate Receipt

In Durden v. Commissioner of Internal Revenue, (T.C., May 17, 2012), the U.S. Tax Court denied a $25,171 tax deduction for contributions to the Nevertheless Community Church made in 2007 by David and Veronda Durden. While the taxpayers produced records of their contributions, including canceled checks, the IRS denied the deduction for failure to comply with Sec. 170 of the Internal Revenue Code.  That section, and regulations under it, require an acknowledgement of the contribution from the charity dated before the return was filed or due. The acknowledgement must indicate the amount contributed and whether the charitable organization provided any goods or services in return for the contribution.  Taxpayers had an acknowledgement from the Church dated January 2008 (before their return was filed), but the acknowledgement failed to indicate whether goods or services had been provided.  They also had a second acknowledgement that did indicate no goods and services were provided, but that acknowledgement was dated June 2009 (after their return had been filed). [Thanks to Steven H. Sholk for the lead.]

Court Rejects Compelled Religious Speech Challenge To Oklahoma License Plates

In Cressman v. Thompson, 2012 U.S. Dist. LEXIS 68236 (WD OK, May 16, 2012), and Oklahoma federal district court rejected a claim by an Oklahoma driver that the picture on the state's standard license plates compel him to express a message contrary to his religious beliefs.  The plates carry the image of a statue of a Native American shooting an arrow into the sky. Plaintiff alleges that the image retells the story of a Native American who believed in multiple deities, the divinity of nature and the ability of humans to use sacred objects to convince gods to alter nature. The court concluded, however:

A reasonable viewer simply could not glean a religious message from the Native American image on the license plate or impute such to the driver. Observers of the image "are presented with a symbol that has various and somewhat imprecise ideas associated with it." ... They are not presented with a "particularized message" that is likely, much less highly likely to be "understood by those who view[] it."

European Court Upholds Spain's Firing of Married Priest As Teacher

In Fernández Martínez v. Spain, (ECHR, May 15 2012), (opinion in French, English press release) the European Court of Human Rights in a Chamber judgment (which is appealable to the Grand Chamber) upheld the decision not to renew the contract of a priest to teach religion in a Spanish state high school.  The action was taken by the local bishop after it was publicly disclosed that the priest, who had been granted a dispensation from the requirement of celibacy (he was married with 5 children), was a member of the Movement for Optional Celibacy. The court rejected the priest's argument that the protections of respect for his private life in Art. 8 of the European Convention on Human Rights invalidated the contract termination.  The court, instead, that the Church's freedom of religion (Art. 9) takes precedence, and (according to the press release): "The requirements of the principles of religious freedom and neutrality precluded it from carrying out any further examination of the necessity and proportionality of the decision not to renew his teaching contract." Turtle Bay and Beyond blog reports on the decision. [Thanks to Alliance Alert for the lead.]

Kuwait's Emir Blocks Proposed Constitutional Amendment Requiring Islamic Law

According to a report today in The Peninsula, the Emir of Kuwait-- whose approval is needed for any constitutional change-- has blocked a proposal to amend the constitution to require all Kuwaiti legislation to comply with Islamic law.  The amendment was put forward by the Islamic Justice Block in Parliament in a proposal signed by 31 of Parliament's 50 members. Kuwait's Constitution (Art. 2) already provides that : "The religion of the State is Islam, and the Islamic Shari'a shall be a main source of legislation." 85% of Kuwait's population is Muslim.

2nd Circuit Creates Fact-Specific Test For Constitutionality of Prayer At City Council Meetings

In Galloway v. Town of Greece, (2d Cir., May 17, 2012), the U.S. 2nd Circuit Court of Appeals, in a case of first impression for it, created an extremely fact-dependent test for determining the constitutionality of opening meetings of legislative bodies with prayer. Here the court held that the prayer policy as implemented by Greece, New York, violates the Establishment Clause because "an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity." The court explained:

a municipality cannot— in our judgment— ensure that its prayer practice complies with the Establishment Clause simply by stating, expressly, that it does not mean to affiliate itself with any particular faith. Nor can a municipality insulate itself from liability by adopting a lottery to select prayer-givers or by actively pursuing prayer-givers of minority faiths whose members reside within the town. Similarly, there is no substantive mixture of prayer language that will, on its own, necessarily avert the appearance of affiliation. Ultimately, municipalities must consider their prayer practices in context and as a whole.... 

We do not hold that the town may not open its public meetings with a prayer or invocation.... Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.”... Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution.... [I]t seems to us that a practice ... that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief—is fully compatible with the First Amendment.

... [However, a] legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause.  Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.

New York Law Journal reports on the decision.

Professor Sues Over University's Reaction To His Criticism of Muslims

AP reported yesterday on a lawsuit filed on May 10 in an Indiana state court by an Orthodox Jewish professor, Maurice Eisenstein, who claims that other faculty and administrators at Purdue University Calumet conspired to ruin his reputation over comments he made in the classroom and on Facebook.  The comments were critical of Muslim reactions to killing of Christians in Nigeria and to insulting the prophet Muhammad.  Two other faculty filed complaints against Eisenstein. A university investigation cleared Eisenstein of charges that he had violated the school's policy against discrimination and harassment. But he was reprimanded for action considered retaliation against the two faculty members who had filed complaints against him.  In last week's lawsuit, Eisenstein claims that the university violated his free speech and free exercise of religion protected by the Indiana constitution, and his right of privacy by making the disciplinary action against him public. He also claims the university's procedures for handling harassment complaints are arbitrary.

Israeli Council To Recommend Memorial Day Reading Omit "God"

Haaretz reports today that in Israel, the Public Council for Soldiers' Commemoration will recommend to Defense Minister Ehud Barak that in Memorial Day ceremonies at military cemeteries the service use a remembrance reading that does not mention God. For many years, ceremonies often used a reading written in the 1920's by Labor Zionist leader Berl Katznelson. Modeled on the traditional Yizkor prayer in remembrance of the dead, Katznelson's version began with the words "Yizkor Am Yisrael" ("May the nation of Israel remember").  After the Six Day War, IDF Chief Rabbi Shlomo Goren changed the verse to read:  "Yizkor Elohim" ("May God remember").  Last year a secular mother of a fallen soldier objected to the version mentioning God, and a public debate followed. (See prior posting.) In this year's ceremonies, the reading was omitted entirely because of the dispute. Many families have complained about that. Under the new recommendation, the original version will officially be part of future ceremonies.

11th Circuit: Christian School's Reason For Firing Pregnant Teacher Is Jury Question

In Hamilton v. Southland Christian School, Inc., (11th Cir., May 16, 2012), the U.S. 11th Circuit Court of Appeals reversed the trial court's dismissal of a lawsuit by a former teacher at a Christian school in St. Cloud, Florida, who was fired after she became pregnant. The school claimed that she was fired because she engaged in pre-marital sex, marrying only after she was pregnant. Plaintiff claims that the real reason the school fired her was because of her pregnancy, and the difficulty in replacing a teacher who takes maternity leave mid-year. Explaining the importance of the distinction, the court said: "Title VII does not protect any right to engage in premarital sex, but as amended by the Pregnancy Discrimination Act of 1978, Title VII does protect the right to get pregnant." The court held that the real reason plaintiff was fired is an issue that needs to be decided by a jury. In the course of its opinion, the court pointed out that the school might have urged dismissal by invoking the ministerial exception doctrine. However, since it did not raise the issue or make any argument in its brief about it, the court refused to decide whether the exception applies here. Wall Street Journal reports on the decision.

Bishops Submit Comments On Proposed Contraceptive Coverage Mandate

The U.S. Conference of Catholic Bishops yesterday submitted its formal comments on the Department of Health and Human Services Advance Notice of Proposed Rulemaking relating to health insurance coverage of contraceptive services. The Advance Notice includes the Administration's proposal 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. In its 21-page letter of comment (full text), the Catholic bishops set out numerous objections. In an accompanying press release, USCCB outlined its 6 main points:

• Contraceptive services are still included in the list of mandated preventive services. 
• Religious employers fully exempted from the mandate are defined too narrowly.
• Many with conscientious objections, such as religious and secular insurance companies, religious and secular for-profit employers, and  individual policy-holders, are ineligible for the exemption.
• Even under the Administration's expanded accommodation of non-profit religious organizations, secular employers are still fully under the coverage mandate.
• Non-exempt religious organizations will still be required to provide plans that serve as a conduit for contraceptives and sterilization procedures to their own employees, and their premiums will help pay for those items.
• The proposals raise questions of whether employers must be independently exempt for their employees to participate in an exempt plan, whether religious objection to some, but not all, contraceptives should be accommodated and whether a past practice of mistakenly or unknowingly covering contraceptives should disqualify one from accommodation.

D.C. Police Department Allows Sikh Officers To Wear Turbans, Beards

The Washington Post reports that yesterday the D.C. police force became the first police department in the country that proactively, and not in response to a lawsuit, is allowing Sikh police officers to wear beards and religious items such as turbans. The policy change came just as a Sikh reserve officer is about to graduate from the police academy. Police Chief Cathy Lanier called the change a common sense decision.  Under the new policy, turbans must match the police uniform and beards must be neatly tied back. The policy also allows Sikh officers to wear or carry other religious articles, including wearing a kirpan under their clothing. SALDEF issued a press release praising the new policy and crediting 8 years of cultural awareness training of the police department with laying the groundwork for the change.

Pastor Sues For Defamation Over Critical Blog Posting

KTAU News reported last week on a defamation lawsuit filed by Beaverton, Oregon Grace Bible Church Pastor Charles O'Neal against a former congregant and her daughter over postings on the former congregant's blog. Three commenters on the blog were also named as defendants.  When Julie Anne Smith and her family left the church, she says that other church members were told to end all contact with her.  So Smith started a blog called Beaverton Grace Bible Church Survivors on which she criticized the church, calling it a spiritually abusive environment.  Excerpts from the complaint in the case contending that these postings were defamatory, are the subject of a more recent blog post by Smith. The lawsuit seeks $500,000 in damages.  Apparently Smith has filed an anti-SLAPP motion seeking to get the case dismissed. [Thanks to Bryan D. Wassom for the lead.]

Iranian Clerics Issue Fatwa Justifying Killing of Anti-Government Rapper

The Wall Street Journal reports today that two influential clerics in Iranian have issued  fatwas that in effect declare that rapper Shahin Najafi has committed blasphemy against Ali an-Naqi., the 10th saint of Shiite Islam. This means that killing Najafi is justified. The fatwas came because of Najafi's rap song, Naqi, released online on May 7 which calls on the saint to save Iran from its current rulers. According to the Journal report:

After Mr. Najafi released his song ... Iranian media and conservative bloggers said it was in violation of an earlier fatwa calling for the execution of anyone who blasphemes the 10th saint of Shiite Islam.... A subsequent fatwa by another grand ayatollah declared that a singer who had been insulting the saint was guilty of blasphemy—giving the green light for his followers to kill Mr. Najafi, though the fatwa didn't mention the rapper by name. Both rulings have been repeated in Iranian media.

An Iranian website, Shia-Online, has offered $100,000 for Najafi's killing and others have pledged further rewards. Fatwas are issued independently of the government, but those who carry them out are not punished under Iranian law.

NLRB Finds No Violation In Requiring Clocking Out For Prayer Breaks

The NLRB's Associate General Counsel has issued an Advice Memorandum dated April 12 (full text) concluding that the Hertz Co. did not violate the National Labor Relations Act when it required Somali Muslim employees at the Seattle-Tacoma (WA) airport to clock out and in for their prayer breaks. The memo concluded that "the employer did not unlawfully implement a midterm contract change ... because it had a sound arguable basis for its interpretation of the contract as permitting it to require that practice." The memo also concluded that Hertz did not violate the NLRA by suspending, and ultimately discharging, the employees who insisted that they would continue to refuse to clock out for prayer breaks. (See prior related posting.) [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

Court Says Opening Council Meetings With Lord's Prayer Is Unconstitutional; Urges Compromise

In Mullin v. Sussex County, Delaware, (D DE, May 15, 2012), a Delaware federal district court granted a preliminary injunction barring Sussex County Council from opening its meetings with the recitation of the Lord's Prayer. The court found it likely that

Council's practice of opening each meeting with a recitation of this distinctly Christian Lord's Prayer violates the Establishment Clause because it constitutes government endorsement of the Christian faith. The fact that The Lord's Prayer has been the only prayer recited at the beginning of Council meetings for over six years is likely to be found to demonstrate that the Council gives Christianity an unconstitutionally preferred status, sending a message to meeting attendees that the Council is promoting the beliefs of Christianity.

However, on its own initiative, the court stayed the effectiveness of the preliminary injunction for one month, expressing the hope that " during this period the parties may confer- perhaps with the assistance of one of this Court's judicial officers as mediator- and attempt to agree upon how to preserve the Council's practice of opening its meetings with a prayer but to do so in a manner that is consistent with the United States and Delaware Constitutions." Americans United issued a press release announcing the decision. [Thanks to Alliance Alert for the lead.]

Israeli Court Holds Jewish Resident Cannot Obtain Citizenship Outside Law of Return

According to Haaretz, in Israel on Tuesday a district court in Haifa rejected an appeal by 89-year old  Professor Uzzi Ornan, founder of the League against Religious Coercion in Israel, seeking to force the Interior Ministry to recognize his Israeli citizenship on the ground he was born in Israel, not because he is Jewish. Ornan was born in Jerusalem, but was exiled by the British in 1944 to Eritrea. When he returned to Israel in 1948, he insisted that in the first census he be listed as having no religion (even though he was born to a Jewish mother), and that his nationality be listed as Hebrew. The Law of Return (full text) provides that its citizenship provisions also extend to every Jew who immigrated to Israel before the passage of the Law of Return in 1950.  It defines as a Jew, anyone "who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion." In this week's case, Ornan insisted that he was "of another religion."  The State Prosecutors Office argued, however, that the fact Ornan is listed in the population registry as having no religion does not affect his being Jewish under the halachic test set out in the Law of Return. The court agreed.

Belarus Denies Death Row Inmates Time For Last Rites and Religious Funerals

Forum 18 reported yesterday on the continuing religious freedom problems relating to death row prisoners in Belarus. Condemned prisoners are told the date and time for their execution only at the last minute. They do not have time to receive a visit from a priest, make confession or take communion. Also bodies of executed prisoners are not handed over to families for burial, and the families are not informed of the place of burial.  This makes it very difficult for families to arrange for a religious funeral for the executed prisoner.

Chicago Archdiocese Is Sued Over Abuse From 30 Years Ago

CBS Chicago reported yesterday that a new lawsuit has been filed against the Catholic Archdiocese of Chicago.  In it, plaintiff Martin Yanick claims that nearly 30 years ago as an 11-year old altar boy he was abused by the now-deceased Rev. John Jordan at Chicago's St. Adrian Parish. According to Yanick, the priest told him that the molestation would cleanse him of his sins and mistakes as an altar boy. The suit which asks for at least $350,000 in damages alleges negligence, fraudulent misrepresentation, failure to protect children from predatory priests and failure to uphold the church’s special relationship with congregants.  It claims that as the Archdiocese failed to respond to sex abuse allegations made as early as 1976, and that it retained pedophile priests without warning parishioners.

Canadian Catholic Bishops Issue Letter On Religious Freedom

Yesterday the Canadian Conference of Catholic Bishops released a Pastoral Letter on Freedom of Conscience and Religion (full text). The 12-page letter, written by the CCCB's Permanent Council was summarized in part by the CCCB as follows:

The letter is largely occasioned by the spread in our own country of an aggressive relativism that actively seeks to force its own view of truth on others. It attempts to relegate religious belief to the private sphere, and considers religion to be insignificant, alien or even destabilizing. Legitimate secularity is open to the engagement of religious beliefs and faith communities in public debate and civic life. Radical secularism, however, excludes religion from the public square. This disfigured view of the secular is becoming more militant in attempting to silence religious believers when their views contradict its own, particularly on issues of education, human life and the family. It is highly hostile to a truly democratic and pluralist society, in that it tolerates only its own voice and tries to silence all others.

The pastoral letter, addressed to everyone of good will, calls on Catholics, all believers, and even those of no faith, 1) to affirm the right of religion to be active in the public square, 2) to maintain healthy Church-State relations, 3) to form consciences according to objective truth, and 4) to protect the right to conscientious objection The letter also encourages all faith communities to contribute to the formulation of public policy and the common good, and concludes by exhorting believers not to compromise their convictions but to stand up for their faith, even if they must suffer for it.

Fine On Attorney For Anti-Catholic Statements In Court Filing Upheld

According to yesterday's St. Paul Pioneer Press, a Minnesota federal district court has upheld the action of a bankruptcy judge who imposed a fine of $5000 on attorney Rebekah Nett for filing a legal memorandum with the bankruptcy court containing bigoted anti-Catholic statements. (See prior posting.) Nett said that the offending memorandum was written by her client, but the district court held that Nett "stuck her head in the sand" when she signed off on the memo.

Obama Campaign Hires Religious Outreach Director

CNN reported yesterday that the Obama re-election campaign is hiring a staffer from the White House Office of Faith Based and Neighborhood Partnerships to be the campaign's religious outreach director. Michael Wear has resigned his position as executive assistant to the executive director of the White House faith-based office, and will join the Obama campaign in Chicago as its Faith Vote Director. This report follows one in the New York Times yesterday that just two hours after announcing his support for same-sex marriage last week, the President had a conference call with eight African-American pastors to explain how he had reached his decision.

Suit Challenges Limits On Evangelist's Gospel Tract Distribution At Street Festival

According to a press release from Alliance Defense Fund, a suit was filed in a New York federal district court last week on behalf of a Christian evangelist who wants to distribute Gospel tracts during the Buffalo (NY) annual Sorrento Cheese Italian Heritage Festival.  According to the complaint (full text) in Owen v. City of Buffalo, (WD NY, filed 5/10/2012), last year police stopped plaintiff from handing out literature at the street festival, even though the Army and local schools were permitted to hand out materials. The suit alleges violations of due process and free speech protections, and asks for a declaratory judgment, an injunction and nominal damages plus costs and expenses.

USCIRF Criticizes Passage of Kuwait's New Blasphemy Bill

The U.S. Commission on International Religious Freedom last week issued a statement (full text) strongly criticizing the Kuwaiti Parliament's recent passage of a bill imposing strong penalties-- including the death penalty in some cases-- for blasphemy. (See prior posting.) USCIRF Chairman Leonard Leo said:

These penalties are alarming and contrary to international human rights standards.  It is particularly regrettable that a strong ally of the United States and a member of the UN Human Rights Council has taken these steps.  The Kuwaiti parliament’s approval is especially unfortunate in light of the new consensus resolutions at the Human Rights Council – adopted in both 2011 and 2012 -- that focus on fighting religious intolerance, discrimination, and violence without restricting speech.

The bill will become law only if approved by the Emir of Kuwait within 30 days of its passage.

Kansas Legislature Passes Anti-Sharia Law Bill

The Kansas state Senate on Friday, by a vote of 33-3 joined the House which by a vote of 120-0 earlier in the week approved the Conference Committee version H Sub SB 79, popularly known as the Sharia law bill. The bill, as amended by the Conference Committee report, provides in part:

Any court, arbitration, tribunal or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions, including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage.

According to a report of Friday from the Wichita Eagle, the chairman of the Senate Judiciary Committee, apologized for signing the Conference Report and thus placing the Senate in the position of having to vote on the bill. Reuters reports that Gov. Sam Brownback has not indicated whether he will sign the bill.

Recent Articles of Interest

From SSRN:

• Gary J. Simson, Religion by Any Other Name? Prohibitions on Same-Sex Marriage and the Limits of the Establishment Clause, (Columbia Journal of Gender and Law, Vol. 23, p. 132, 2012).
• John M. Kang, Martin v. Malcolm: Democracy, Nonviolence, Manhood, (West Virginia Law Review, Vol. 114, No. 937, 2012).
• Brian D. Galle, Charities in Politics: A Reappraisal, (William & Mary Law Review, Forthcoming).
• Randall P. Bezanson, Sheila Anne Bentzen and C. Michael Judd, Mapping the Forms of Expressive Association, (Pepperdine Law Review, Forthcoming).
• Patrick S. Metze, Troy Davis, Lawrence Brewer, and Timothy Mcveigh Should Still Be Alive: Certainty, Innocence, and the High Cost of Death and Immorality, (6 Charleston L. Rev. 333, Winter 2012).
• Nan D. Hunter, Animus Thick and Thin: The Broader Impact of the Ninth Circuit Decision in Perry v. Brown, (Stanford Law Review Online, Vol. 64, pp. 111-116, 2012).
• Zubair Abbasi, God’s Law v. Corporations: A Critique of Islamic Law Matters Thesis, (May 6, 2012).

Former USCIRF Employee Sentenced For Embezzling Funds

The Washington Examiner reported yesterday that a D.C. federal district judge has sentenced Carmelita Hines, former office operations manager for the U.S. Commission on International Religious Freedom, to 20 months imprisonment for wire fraud.  In February, Hines plead guilty to the charges which stemmed from her embezzling over $217,000 from USCIRF. According to the Statement of Offense (full text), Hines used USCIRF credit cards for personal expenses and personal cash withdrawals for a period from 2007 to 2011.

Child Abuse Laws Do Not Violate Pastor's Free Exercise Rights

In Madison, Wisconsin last Thursday, a state trial court judge refused to overturn the conviction of a pastor who, in March, was found guilty on 8 counts of conspiring to commit child abuse. According to WTAQ News, pastor Philip Caminiti of the Aleitheia Bible Church in Black Earth (WI) was convicted for preaching to his parishioners that, consistent with Biblical teachings, they should discipline their children by hitting them on their bare buttocks with wooden dowels. Caminiti argued that his convictions violate his right to the free exercise of religion, but the judge ruled that Caminiti had failed to show that the state's child abuse laws put a burden on his sincere religious beliefs. (See prior related posting.)

Colombia's Constitutional Court Awards Pension Rights To Deceased Priest's Same-Sex Partner

According to a report on Friday by Pink News, Colombia's Constitutional Court has ordered the country's Institute of Social Security to award pension rights to the same-sex partner of a deceased Catholic priest. The two lived together for 28 years before the priest's death in 2009. The court ruled that same-sex couples constitute a family under Colombian law. Rejecting determination by lower courts that no pension was required because the priest had broken his vow of chastity, the Constitutional Court held that it must exercise the principle of religious neutrality in its decisions.

Arizona Governor Signs 2 Bills Aimed At Protecting Religious Liberty

Arizona Governor Jan Brewer's office announced  that on May 11 she signed HB 2625 which expands the definition of those religiously-affiliated employers that may exclude contraceptive coverage from their health insurance plans. New language expands the definition to include "an entity whose articles of incorporation clearly state that it is a religiously motivated organization and whose religious beliefs are central to the organization's operating principles."

AP also reports that Brewer last week signed SB 1365 which prohibits denial or revocation of any professional or business licence for conduct or statements motivated by a person's sincere religious beliefs.  Among the specific conduct protected (subject to certain exceptions) is refusal to provide any service that violates the person's sincere religious beliefs, and making employment or client selection decisions based on sincere religious beliefs.

Patheos has the reaction of the Executive Director of the Secular Coalition of Arizona to the two measures. [Thanks to Scott Mange for the lead.]

Recent Prisoner Free Exercise Cases

In Couch v. Jabe, (4th Cir., May 11, 2012), the U.S. 4th Circuit Court of Appeals, remanding for further proceedings, held that prison officials had not satisfied their burden under RLUIPA to show how allowing a Sunni Muslim inmate to grow a one-eighth inch beard would implicate health or security concerns.

In Hall v. Martin, 2012 U.S. Dist. LEXIS 62499 (WD MI, May 3, 2012), a Messianic Jewish inmate sued claiming that denial of a kosher vegan diet violated his rights under RLUIPA and the 1st Amendment. The Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 63300, March 29, 2012) and denied a preliminary injunction, saying it might be reconsidered if plaintiff is willing to accept the diet already offered to Buddhists and Seventh Day Adventists. The court also refused to dismiss plaintiff's damage claim for violation of the free exercise clause, concluding that it was improper for officials to deny plaintiff's request by considering what Jewish religious doctrine requires, instead of merely considering his sincere religious beliefs.

In Warner v. Cate, 2012 U.S. Dist. LEXIS 64643  (ND CA, May 8, 2012), a California federal district court  allowed an inmate seeking a kosher diet to move ahead with his free exercise and equal protection claims against several defendants.  Plaintiff's request had been denied by prison authorities because he was not born of a Jewish mother and was thus not considered to be Jewish under religious law. His complaint against the Secretary of the California Department of Corrections was dismissed with leave to amend to appropriately alleging supervisory liability.

In Birdwell v. Cates, 2012 U.S. Dist. LEXIS 65199 (ED CA, May 9, 2012), a California federal magistrate judge recommended dismissing claims by an inmate who practiced Asatru-Odinism and who claimed that certain limitations on items he could possess and requiring sharing of outdoor worship space violated his rights under the free exercise and equal protection clauses and under RLUIPA.

Christian College Professor May Proceed With Discrimination Claims

In Baiyasi v. Delta College, 2012 U.S. Dist. LEXIS 65715 (ED MI, May 10, 2012), a Michigan federal district court permitted former college science professor, Stephanie Baiyasi, to proceed with religious discrimination claims under Title VII of the 1964 Civil Rights Act and under Michigan's Elliott-Larsen Civil Rights Act. The suit claims that the chair of the college's science division made anti-Christian statements and rejected "creation science" beliefs. While rejecting a hostile work environment claim, the court permitted plaintiff to proceed with her contentions that she was denied tenure and then terminated because of her religious beliefs, and that the that she was denied tenure in retaliation for her complaints about religious discrimination to Human Resources and the President of the College.

Defendant's Confession To Pastor Is Privileged

In People of the State of Michigan v. Bragg, (MI App., May 8, 2012), a Michigan state appellate court held that a confession to a Baptist minister of defendant's sexual assault of a young girl is privileged under Michigan law. Pastor John Vaprezsan elicited the confession from defendant, the son of the church's secretary. MCL Sec. 767.5a provides that communications between members of the clergy and members of their respective churches that are privileged when necessary to enable the member of the clergy to serve as such. The court held that neither the fact that the pastor initiated the conversation in which the confession was elicited, nor the fact that defendant's mother was present during the conversation prevented the confession from being privileged.

Romney Speaks At Liberty University of Religious Freedom and American Values

Earlier today, presumptive Republican presidential nominee Mitt Romney delivered the commencement address at Liberty University, the conservative Christian university founded by evangelist Jerry Falwell.  Business Insider has both video excerpts and a transcript of the full text of the talk. Romney said in part:

Christianity is not the faith of the complacent, the comfortable or of the timid. It demands and creates heroic souls....  Central to America’s rise to global leadership is our Judeo-Christian tradition, with its vision of the goodness and possibilities of every life. 

The American culture promotes personal responsibility, the dignity of work, the value of education, the merit of service, devotion to a purpose greater than self, and, at the foundation, the pre-eminence of the family....  As fundamental as these principles are, they may become topics of democratic debate.  So it is today with the enduring institution of marriage.  Marriage is a relationship between one man and one woman.

The protection of religious freedom has also become a matter of debate.  It strikes me as odd that the free exercise of religious faith is sometimes treated as a problem, something America is stuck with instead of blessed with.  Perhaps religious conscience upsets the designs of those who feel that the highest wisdom and authority comes from government.

Chile Passes Anti-Discrimination Law That Had Been Pending For 7 Years

The Santiago Times and I Love Chile News both report on final passage by Chile's Senate on Wednesday of an anti-discrimination law that had been pending in Parliament for 7 years. The Senate's 25-3 vote in favor of the bill follows the killing in March of 24-year-old Daniel Zamudio in a neo-Nazi hate crime attack. The new law, which still needs to be approved by the Constitutional Tribunal as constitutional, punishes discrimination by fines of up to 1.8 million CLP ($3700 US). A fine of up to 733,000 CLP ($1500 US) will be imposed an a complainant if no discrimination is found. The new law defines discrimination as:

any distinction, exclusion or restriction, without reasonable justification, made by state officials or private individuals and causing deprivation, disruption or threat to the legitimate exercise of fundamental rights enshrined in the Constitution of the Republic or in international human rights treaties ratified by Chile.

It includes differential treatment based on a broad range of characteristics: race, ethnicity, nationality, socioeconomic status, ideology, political opinion, religious beliefs, participation in organizations or lack thereof, sex, gender, sexual orientation, appearance, health and disabilities. In the past, opponents of the law, including Protestant churches and the Catholic Church, had been concerned that it could be used to legalize same-sex marriage.  To deal with those concerns, the final version provides in Art. 18: "The precepts of this law cannot be interpreted as derogatory clauses or modifications of other legal norms."

Top Egyptian Presidential Candidates Debate-- Including Views On Religion and State

Policymic posted a live blog report on yesterday's debate in Egypt between the country's two leading presidential candidates-- Abdel Moneim Aboul Fotouh, former leader of the Musilm Brotherhood running as a liberal Islamist; and Amr Moussa, formerly Hosni Mubarak's foreign minister running as the secular candidate. Here are excerpts from the debate relating to the candidate's views on religion and its relation to government:

5:35pm. Aboul Fotouh asks what he meant by referring to "the general principles" of Sharia?

Moussa responds by saying his understanding does coincidence with the prevalent understanding of this topic, and it refers to the general framework of Islamic thought which encourages tolerance, serving people and the nation, moral values, etc. He states that we have to be clear, though, that Aboul Fotouh calls for applying the rules of Sharia whereas I am calling for applying only the principles (as is stated in Article 2).
.....
4:40pm Amr Moussa asks Aboul Fotouh: in a previous interview you stated you believe that it is the right of a Muslim to convert to Christianity and it is the right of a Christian to convert to Islam. Do you still believe this?

Aboul Fotouh: That quote isn't precise: I said that God has given all of humanity the right to choose a religion. And when it comes to apostates, we can try to convince them to change their mind but ultimately we cannot interferring with their right to choose.

4:35pm What is your specific vision for the relationship between religion and state?

Moussa: There is consensus on Article 2 of the constitution which states that the principles of Sharia are the main source of legislation. Different religious groups also have their different primary sources. Egypt is a religious society and the foundation for all the candidates' visions is rooted in religion, but when it comes to making decisions about social issues (health, education, etc.) this foundation needs to agree with the needs of Egyptian society. For example, our education system must be modern and must be able to prepare our youth to compete in today's world. 

Aboul Fotouh: The nature of Islam and its basic principles is that it seeks the best interests of the people. So when we seek the best interests of the people in health, education, agriculture, etc this is in agreement with Islam. As the current constitution states, and we hope the forthcoming constiution will also affirm, Sharia is the main source of legislation, under the supervision of the Constitutional Court.

2nd Circuit Upholds New York's Kosher Food Disclosure Law

In Commack Self-Service Kosher Meats, Inc. v. Hooker, (2d Cir., May 10, 2012), the U.S. 2nd Circuit Court of Appeals upheld the constitutionality of New York state's Kosher Law Protection Act of 2004. The law requires sellers and manufacturers that market their products as kosher to label the foods as such and to identify in a filing with the state Department of Agriculture the individuals certifying the food as kosher. Individuals who certify non-prepackaged food as kosher are required to file a statement of their qualifications with the Department of Agriculture. Establishments that prepare kosher food on premises must post a specified disclosure form regarding certification of its food and certain of its practices. The Act does not define what is kosher, adopt kosher standards of any particular branch of Judaism nor authorize state inspectors to determine if products are in fact kosher-- defects which led courts in a 2002 case to strike down an earlier version of New York's law on kosher food. The court found that the 2004 labeling and disclosure law does not violate either the Establishment or Free Exercise clause, nor is it unconstitutionally vague. Bloomberg News reports on the decision.

Colorado Day of Prayer Proclamations Violate State Constitution

In Freedom From Religion Foundations, Inc. v. Hickenlooper, (CO Ct. App., May 10, 2012), the Colorado Court of Appeals held that the governor's Colorado Day of Prayer proclamations issued from 2004 to 2009 are unconstitutional under the Colorado Constitution, Art. II, Sec. 4, that provides: "Nor shall any preference be given by law to any religious denomination or mode of worship."  Applying Colorado's standing rules that are broader than those in federal court, the court held that plaintiffs could bring suit as taxpayers challenging the proclamations.  The court went on to hold that the predominant purpose of the proclamations is to advance religion, and that "a reasonable observer would conclude that these proclamations send the message that those who pray are favored members of Colorado’s political community, and that those who do not pray do not enjoy that favored status." It also held that the precedents permitting legislative prayer do not validate the proclamations. Freedom From Religion Foundation issued a press release announcing the court's decision. [Thanks to Scott Mange for the lead.]

Canada's Federal Court Rejects Questioning Refugee Applicants On Religious Knowledge

In Zhang v. Minister of Citizenship and Immigration, (Fed. Ct., May 4, 2012), Canada's Federal Court ruled that it was improper for Canada's Immigration and Refugee Board to decide that an applicant for refugee status was not a genuine Christian, based on questioning about the applicant's knowledge of Christianity.  At issue was a claim by Haixhin Zhang, who was in Canada on a visitor's visa, that he would be arrested if he returned to China because he regularly attended services of a house church in China. The Refugee Protection Division member who initially passed on the application found that Zhang had likely joined a Christian church in Canada to support a fraudulent refugee claim. The Federal Court said, however, that this conclusion is not defensible as a matter of either fact or law:

The transcript reads as a debate between scholars on the correct interpretation of Christian theology. Testing an applicant’s understanding of religious tenants is fraught with unaddressed extremely serious questions.....

If it is to be said that all Christians should know certain facts about the religion, there must be a verifiable way to establish this expectation. The expectation cannot be so established on a completely subjective basis by a decision-maker. Therefore, if a general expectation is established of persons who claim to be Christians, advance notice of the expectation must be given so the expectation is fair to all who apply....

[A] finding of implausibility that a certain person is not of a certain faith because he or she does not meet a certain subjective standard set by a decision-maker is indefensible as a matter of fact.... [K]nowledge of religious dogma, does not equate to holding religious faith. It’s not about the doctrines. The thing that is important is the ethic instilled by the religious teachings that a person takes and lives by. Attending church and quoting scriptures aren’t as important as how a person lives his or her life according to the morals and values learned....

The National Post, reporting on the decision, says that other cases in recent months have similarly found that the IRB has imposed unreasonably high standards of religious knowledge on applicants claiming religious persecution.

Investigative Article Explores Pressures In Hasidic Communities Not To Report Sexual Abuse

Today's New York Times carries a long front-page story on the pressures within New York's insular Hasidic Jewish communities against victims' families reporting child sexual abuse to civil authorities. The Times reports:

There have been glimmers of change as a small number of ultra-Orthodox Jews, taking on longstanding religious and cultural norms, have begun to report child sexual abuse accusations against members of their own communities. But those who come forward often encounter intense intimidation from their neighbors and from rabbinical authorities, aimed at pressuring them to drop their cases.

Abuse victims and their families have been expelled from religious schools and synagogues, shunned by fellow ultra-Orthodox Jews and targeted for harassment intended to destroy their businesses. Some victims’ families have been offered money, ostensibly to help pay for therapy for the victims, but also to stop pursuing charges, victims and victims’ advocates said.

The situation varies among different Hasidic communities. Last year a Chabad-Lubavitch religious court in Crown Heights ruled that where there is evidence of abuse, "one is forbidden to remain silent."  And recently in Williamsburg, Satmar Hasidic authorities posted Yiddish-language signs in synagogues warning adults and children to stay away from a specific named individual who was molesting young men.

Suit Challenges Indiana's Limit On Who May Solemnize Marriages

The Center for Inquiry is an organization devoted to fostering a secular society based on science, reason, freedom of inquiry and humanist values. Yesterday it filed a federal lawsuit seeking to require the state of Indiana to permit those who have completed the Center's Secular Celebrant Program to solemnize marriages in Indiana. The complaint (full text) in Center for Inquiry, Inc. v. Clerk, Marion Circuit Court, (SD IN, filed  5/9/2012), claims that IN Code Sec. 31-11-6-1 that limits solemnization of marriages to clergy, various religious groups, and public officials, violates the Establishment Clause and the 14th Amendment's equal protection clause. Center for Inquiry issued a press release yesterday announcing the filing of the lawsuit.

President Obama Says He Supports Same-Sex Marriage

ABC News reports that in an interview recorded today, President Barack Obama told ABC News' Robin Roberts that he now supports same-sex marriage. Obama said in part:

I have to tell you that over the course of several years as I have talked to friends and family and neighbors, when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together; when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that 'don't ask, don't tell' is gone, because they are not able to commit themselves in a marriage, at a certain point I've just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.

The President added that this is his personal position, but that he still supports the right of individual states to decide whether or not they will recognize same-sex marriages.

UPDATE: The New York Times reports that presumptive Republican presidential nominee Mitt Romney today reiterated his position opposing same-sex marriage and at least some types of civil unions:

"My view is the same as it’s been from the beginning," Mr. Romney told a CBS affiliate in Denver. "I don’t favor civil unions if it’s identical to marriage, and I don’t favor marriage between people of the same gender." Asked why he opposed civil unions, in particular, he explained that in many cases they represent marriage by a different name for gay couples.

North Carolina Voters Approve Constitutional Amendment Preserving Traditional Definition of Marriage

CNN reports that yesterday North Carolina voters, by a 61%-39% majority, approved a state constitutional amendment barring same-sex marriage and civil unions. The vote was 1,303,952 for, and 831,788 against. The amendment (full text) provides:

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

With this vote, North Carolina becomes the 31st state to add a constitutional amendment preserving the traditional definition of marriage. Six states and the District of Columbia issue marriage licences to same-sex couples.

Australian Appeals Court Refuses Bench Trial For Muslim Who Feared Jury Prejudice

In R. v. Belghar, (NSW Ct. Crim. App., May 4, 2012), an appellant court in the Australian state of New South Wales reversed a trial court judge's decision that a Muslim defendant charged with assault, intimidation and attempted murder should be granted a non-jury trial. Defendant, who allegedly attacked his wife's sister, requested the bench trial because he believed the jury might be prejudiced against his religious beliefs. The Crown objected to the request. The attack apparently took place because defendant was angry that his sister-in-law took his wife to the beach where his wife displayed her body (as evidenced by her sunburned shoulders). According to the trial court judge:

this was abhorrent to the applicant by virtue of either his strict religious beliefs or by virtue of the fact that he believed he had absolute authority over the wife as opposed to the wife's family having some authority over her.... In this particular case there is direct reference to aspects of the Muslim faith which may cause a jury to take their mind off the central issue which is a single issue, that is, what was the intent of the applicant at the point in time that he came into contact with the victim at the Broadway shopping centre.

The Court of Criminal Appeals, however, reversed the decision, holding that:

the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice... is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict....

It may be accepted that from time to time adverse publicity is given to events which have occurred, generally outside Australia, where the strict application of a form of Muslim law or Islamic tradition has given rise to the treatment of a woman or women in a manner which is generally unacceptable to ordinary Australians. It may also be that some people in the Australian community harbour prejudice against persons who adhere to the Muslim faith, particularly against those holding "conservative" views about the place and role of women in marriage or in wider society. However, without evidence that such views are widespread in the Australian community and would be likely to influence jurors, it must be assumed that the protection afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result.

9News reports on the decision.

India's Supreme Court Orders Phase Out of Hajj Subsidy

According to Calcutta's The Telegraph, a two-judge bench of India's Supreme Court yesterday ordered the government to phase out over ten years the government's subsidy for Hajj pilgrims, even though another bench of the Supreme Court had previously held the subsidy constitutional. Currently the government subsidizes each pilgrim the equivalent of $730 (US). The court yesterday apparently based its decision largely on the fact that the Qur'an required Muslims to use only their own funds for making the Hajj. Several Muslim leaders welcomed the decision, some saying that the subsidies benefit Air India more than the pilgrims, and that more competition among airlines could lower the cost. The court yesterday also asked the Haj Committee of India and the state Haj committees to explain further the method they use to select pilgrims. The committees have two months to file a reply.

Catholic Business Group Challenges Health Insurance Mandate

Another federal court lawsuit was filed this week challenging the Obama administration's mandate under the Affordable Care Act requiring that health insurance policies fully cover contraceptive services. The suit was filed by Legatus, an organization of Catholic business owners and CEOs, as well as by a member of the organization and his company. The complaint (full text) in Legatus v. Sebelius, (ED MI, filed 5/7/2012) claims that the Mandate violates the free exercise and Establishment clauses, infringes free speech rights and violates RFRA and the Administrative Procedure Act. The complaint alleges:

Complying with the Mandate requires a direct violation of the Plaintiffs’ religious beliefs because it would require Plaintiffs to pay for and assist others in paying for or obtaining  not only contraception, but also abortion, because certain drugs and devices such as the “morning-after pill,” “Plan B,” and “ella” come within the Mandate’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action.

The Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Algeria's Election Commission Warns Against Use of Religion In Campaign

In Algeria, the National Legislative Election Monitoring Commission has warned Islamist groups that the country's law on political parties prohibits the use of religion for political ends.  According to Magharebia yesterday, the Commission is concerned about Islamist candidates using religious references in their speeches. Meanwhile, the Religious Affairs Ministry has urged imams to remain neutral in tomorrow's legislative election, saying they are exploiting the office of imam by becoming involved in political arguments. The Religious Affairs Minister has called for daily reports of any recorded wrongdoing, whether by imams or political parties. In the 1990's a civil war in Algeria between the government and the Islamic Salvation Army killed over 150,000 people.

New USCIRF Commissioner Appointed; Child of Holocaust Surviviors

On May 1, former House of Representatives member Sam Gejdenson was appointed by  House Minority Leader Nancy Pelosi to a vacancy on the U.S. Commission on International Religious Freedom. (USCIRF press release.)  Gejdenson is the child of Holocaust survivors, having been born in 1948 in a U.S. displaced persons camp in Eschwege, Germany. While serving in Congress, Gejeenson co-authored the Trafficking Victims Protection Act.

Summary Judgment Denied To Defendants In RLUIPA Zoning Case

In Liberty Temple Full Gospel Church, Inc. v. Village of Bolingbrook, (ND IL, April 12, 2012), an Illinois federal district court refused to grant summary judgment to defendants in a RLUIPA case in which the parties disagreed over what the zoning designation was for the area in which a church leased land on which it wished to build.  The city claimed that the area is not zoned for churches, and that the zoning designation of the area was merely incorrectly left off the county's zoning map. The court said:

This  case,  then,  turns  on  the  issue  of  what  the  property leased was zoned:  B-2 (Community Retail) or B-4 (Commercial Urban Development).  Both sides agree churches are allowed in the latter, but not in the former.  If it is the former, the church was not substantially burdened merely by the fact that it was not allowed to locate wherever it chose.  If  it  is  zoned  B-4, the Village’s  refusal  to  accept building permit application and architectural drawings, and forcing the  church  to  either  apply  for  a  SUP [special use permit]  or  go  to  court,  may  have substantially burdened the Plaintiff in violation of RLUIPA.

See prior related posting.

Judge Suggests Mediator Consider a "6 Commandments" Solution

As previously reported, last September the ACLU filed a lawsuit against the Giles County, Virginia school board challenging a display of historical documents including the Ten Commandments in one of the county's high schools.  NECN News reported yesterday that federal district judge Michael Urbanski sent the case into mediation, suggesting that the parties consider whether the display could be modified by leaving out the four Commandments that mention God.

Allocation of Playing Fields Did Not Violate Establishment Clause

In Rogers v. Mulholland, (D RI, May 4, 2012), a Rhode Island federal district court rejected claims by municipal taxpayers that the city of Pawtucket violated the Establishment Clause in the way it allocated use of publicly owned athletic fields for use by private religious schools. The court said in part:

There is no evidence that the fields are used for anything other than a purely secular purpose. The sectarian school students are receiving a benefit available to all junior high and high school students in the City. Public schools receive preferential assignments for all games. The Court concludes that a reasonable observer aware of the relevant circumstances and context of the City's conduct would not perceive a message of governmental endorsement or sponsorship of religion.

Guantanamo Proceedings Begin With Attorney In Hijab and Delay For Prayer

Facing the action by Congress blocking the trial of Guantanamo Bay inmates on U.S. soil, yesterday five inmates charged with the 9/11 attacks were arraigned in a military tribunal at Guantanamo.  The London Daily Mail reports that Walid bin Attash's attorney Cheryl Bormann, appeared in court wearing a Hijab (Islamic head scarf). She later explained that her client insists  she wear this clothing, and she always does so around him.  She also requested that other women at the hearing dress similarly so that the defendants do not have to avert their eyes "for fear of committing a sin under their faith."  At one point during the hearing defendant Ramzi Binalshibh delayed the proceedings by standing up and then kneeling on the courtroom floor and praying for several minutes, with a row of guards keeping close watch.

Australian State Supreme Court Upholds Prison Sentence For Anti-Semitic Statements and Internet Postings

In O'Connell v. State of Western Australia, (Sup. Ct. W. Aust., May 4, 2012), the Supreme Court of Western Australia upheld the conviction and 3-year sentence (with eligibility for parole) of Australian Brendon O'Connell for harassing a member of a racial group and for promoting animosity toward a racial group. The convictions stemmed from anti-Semitic statements that defendant published on the Internet, as well as statements made directly to Elliot Keyser who was president of the Western Australian Union of Jewish Students. O'Connell engaged in a heated confrontation with Keyser during a protest by Friends of Palestine over a supermarket's sale of Jaffa oranges imported from Israel. O'Connell then posted video footage online accusing Jews, in vivid language, of killing anyone who stood up to them. O'Connell was also prosecuted for blog postings he placed online after he was charged in connection with the video footage.  JTA reports that the prison sentence is the first under Western Australia's racial vilification laws. O'Connell had gone on a hunger strike in an attempt to get the court to hear his appeal.

Jury Awards $5.12 M In Employment Discrimination Suit Against AT&T

AP reports that last Thursday, a state trial court jury in Kansas City, Missouri awarded a Muslim woman $120,000 in lost wages and other actual damages, and punitive damages of $5 million, against AT&T in the largest employment discrimination award in Missouri history.  Susan Bashir, who worked as a fiber optics network builder for ten years converted to Islam in 2005. She was harassed constantly about her religion, and in 2008 her boss pulled off her headscarf and exposed her hair in an encounter over the fact that she had filed an employment discrimination complaint with the EEOC. She became so stressed that she could not return to work, and she was fired after being off the job for nine months.

Recent Articles of Interest

From SSRN:

• Mark L. Movsesian, The Price of Ottoman Failure, (April 27, 2012).
• Cyra Akila Choudhury, Between Tradition and Progress: A Comparative Perspective on Polygamy in the United States and India, (University of Colorado Law Review, Vol. 83, No. 4, 2012).
• Kenneth L. Marcus, Three Conceptions of Religious Freedom, (May 4, 2012).

From SmartCILP:

• Dwight Bashir, Dean Fred F. Herzog Memorial Lecture. Religious Freedom under Assault in the Middle East: An Imperative for the U.S. and International Community to Hold Governments to Account, 45 John Marshall Law Review xxiii-xlii (2011).

Recent Prisoner Free Exercise Cases

In Eubanks v. Lempke, (2d Cir., May 1, 2012), the 2nd Circuit rejected an inmate's claim that his conviction was invalid because the verdict against him was read on a Friday when he was absent from the courtroom for religious reasons. As defendant, he had never requested an adjournment or accommodation.

In Williams v. King, 2012 U.S. Dist. LEXIS 60847 (SD NY, April 24, 2012), a New York federal district court refused to permit an inmate to add the former prison superintendent as a defendant in his complaint that his request to change the Shiite Muslim staff adviser was denied, but permitted him to proceed against other defendants on his claim of retaliation for filing a religious grievance.

In Watkins v. Haynes, 2012 U.S. Dist. LEXIS 61729 (SD GA, May 2, 2012), a Georgia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 61726) and dismissed official capacity claims, but permitted plaintiff to proceed with individual capacity claims against officials at his former prison that he was denied meals that were consistent with his Rastafarian beliefs.

In Hargrove v. Johnson, 2012 U.S. Dist. LEXIS 61279 (MD GA, May 2, 2012), a Georgia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 61281, March 30, 2012) and permitted an inmate to proceed against certain defendants on his complaint that Muslims were not allowed to congregate religiously in the dorms.

In Hall v. Martin, 2012 U.S. Dist. LEXIS 60405 (WD MI, May 1, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 61697, March 15, 2012), and rejected an inmate's complaint that no separate religious services were provided for Messianic Jews.

In Dominguez v. Department of Mental Health, 2012 U.S. Dist. LEXIS 62305 (ED CA, May 3, 2012), a California federal magistrate judge recommended dismissing the Department of Mental Health as a defendant in a suit by a Native American inmate that his right to practice his religion had been violated.

Tennessee Governor To Veto Bill Aimed At Vanderbilt's All-Comers Rule

The Tennessean reported last week that Tennessee Gov. Bill Haslam will exercise his first veto of legislation by vetoing HB3576/SB3597, a bill that targets Vanderbilt University's "all comers" policy.  That anti-discrimination policy precludes recognized student religious organizations from requiring that members or leaders share the group's religious beliefs. The original version of the bill barred state universities from adopting a similar rule.  However a later amendment provided that Vanderbilt, a private institution, could continue its all-comers policy only if it also required fraternities and sororities to accept all students who apply as members. Governor Haslam, in a statement quoted by The Tennessean said: "Although I disagree with Vanderbilt’s policy, as someone who strongly believes in limited government, I think it is inappropriate for government to mandate the policies of a private institution." [Thanks to Blog from the Capital for the lead.]

Group Says E-mail of Department Head's Prayer To Employees Violated Establishment Clause

The Freedom From Religion Foundation has written Florida governor Rick Scott complaining about an e-mail sent by Department of Children and Families Secretary David Wilkins to all department employees. (Full text of letter.) The Miami Herald reported yesterday that Wilkins sent employees a copy of a long prayer that he delivered at the National Day of Prayer observance at the Florida Capitol. (The Herald article contains the full text of the prayer.) The FFRF letter argues that the e-mail "gives the appearance of government endorsement of Christianity."  A Department of Children and Families spokesman, however, said that the e-mail is merely "a continuation of the ongoing dialogue the Secretary has with employees to share details about public appearances and agency activities."

New Zambian Draft Constitution Has Lengthy Religious Freedom Provisions

In Zambia, on April 30, Justice Annel Silungwe, chairman of the Technical Committee on Drafting the Zambian Constitution released for public comment the first draft (full text) of a new Zambian Constitution. The draft Constitution includes unusually long provisions on freedom of religion. The 320 article document begins with the following:

WE, THE PEOPLE OF ZAMBIA, IN EXERCISE OF OUR CONSTITUENT POWER:

ACKNOWLEDGE the supremacy of God Almighty;

DECLARE the Republic a Christian Nation, but uphold the right of every person to enjoy that person’s freedom of conscience or religion;

UPHOLD the human rights and fundamental freedoms of every person and recognise the equal worth of different communities in our Nation;

Article 35 of the draft then provides:

35. (1) A  person has the right to freedom of  conscience, religion, thought, belief and opinion.

(2) A person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, observance, practice or teaching.

(3) Clause (2) does not extend to- (a) anti-Christian teaching and practice; (b) propaganda to incite religious wars; and (c) any conduct that infringes  the enjoyment of  religious freedoms by others.

(4) A religious community shall be entitled, at its own expense, to establish, maintain and manage educational institutions, facilities and programmes for, and to provide religious instruction to, members of that community.

(5) Religious  observance and instruction may be conducted at State or State-aided institutions as long as -
(a) the facilities  for that religious observance and instruction at  that institution are made available on an equitable basis, having regard to the beliefs of the population served by that institution; and
(b) attendance, observance or instruction is  voluntary.

(6) A person shall not be deprived of access to any institution, employment or facility, or the enjoyment of any right or freedom because of that individual’s religious beliefs.

(7) A person shall not be compelled –
(a) to take an oath that is contrary to that individual’s religion or belief or that involves expressing a belief that the individual does not hold;
(b) to take an oath in a manner that is contrary to that individual’s religion or belief;
(c) to receive instruction in a religion that is not that individual’s religion or to attend a ceremony or observance of that religion;
(d) by a public body or public officer to disclose that individual’s religious conviction or belief; or
(e) to do any other act that is contrary to that individual’s religion or belief.

Voice of America reports on other aspects of the new draft.

Texas Church Wins In Settlement of RLUIPA Case

Becket Fund announced this week that a settlement has been reached in the RLUIPA lawsuit brought by Elijah Group (a church) against the city of Leon Valley, Texas.  Last year the 5th Circuit held that the city's zoning law that prohibits churches from operating in areas zoned for business violates the equal terms clause of the Religious Land Use and Institutionalized Persons Act (See prior posting.) Under the settlement, the city will allow the church to continue to meet on the property it leases, and the city will also pay $250,000 for the church's legal fees.

Free Exercise Clause Does Not Bar Court From Deciding Whether Trade Secret Was Misappropriated

Art of Living Foundation v. Does, 2012 U.S. Dist. LEXIS 61582 (ND CA, May 1, 2012) is a copyright infringement and trade secret misappropriation case brought by foundation that teaches the wellness and spiritual lessons of Ravi Shankar, including courses on breathing, meditation, and yoga. One of the defendants posted copies of the Foundation's teaching materials on his blog. The court held that it could decide the trade secret claims without being required to interpret Hindu beliefs or other religious teachings.

Defendants argue that the alleged trade secrets are merely conventional Hindu mystical claims, and that insofar as the Foundation claims it has added novel elements to traditional Hindu concepts, determining this "would ensnare the judicial system in questions of religious doctrine" in contravention of the 1st Amendment's free exercise clause. The court, however, disagreed concluding that it can determine the trade secret status of the materials just as it would any secular work by comparing the material to what is generally known to the public, considering whether plaintiff derived economic value from the nondisclosure, and evaluating whether plaintiff took reasonable measures to maintain the secrecy of the information. Quoting from an earlier case, the court said:

"While the trade secret laws did not necessarily develop to allow a religion to protect a monopoly in its religious practices, the laws have nonetheless expanded such that [a religious entity's] techniques, [if] 'used in the operation of the enterprise,' are deserving of protection if secret and valuable."

The court then added:

A defendant cannot deprive a plaintiff's materials of trade secret protection simply by invoking the Free Exercise Clause through allegations that the materials overlap with religious doctrinal principles.

Positions of Egyptian Presidential Candidates On Religion and State Published

Aswat Masriya yesterday published a compilation of the positions of each of Egypt's 12 Presidential candidates  on whether they prefer a religious or civil state. Amre Moussa, seen as the leading candidate by a recent poll, said:

Article 2 in the constitution which states that Sharia is the main source of legislation offers a brilliant and logical basis for Egypt to follow, anything else will not be appropriate. The Egyptian people will not tolerate "the Propagation of Virtue and the Elimination of Sin" approach.

Abdel Moneim Aboul Fotouh, also one of the leading candidates and a former member of the Muslim Brotherhood said:

A modern civil state inspired by Sahria - in agreement with moral principles of monotheistic faiths - that allows for the reactivation of Egypt's regional role in the Middle East, Africa and Islamic region.

Austria's New Religion Law Threatens Liberal Jewish Congregation's Independence

A small liberal Jewish congregation in Austria has applied for official status as a "Kultusgemeinde," or official Jewish community.  According to JTA yesterday, if the recognition is not granted to Or Chadash before Austria's new religion law (passed last month) takes effect, the liberal congregation will be subject to control by Orthodox Jewish authorities. The new law creates  religious boards consisting of representatives from state-recognized religious communities. The boards will then have control over all religious matters, including conversions, marriages and burials, as well as over funding for schools, teachers and buildings. Currently all 5 recognized Jewish communities in Austria are Orthodox.  Or Chadash was unsuccessful in its attempts to get Parliament to explicitly recognize Liberal Judaism in the new law.