Religion Clause

Friday, May 25, 2012

Mary Ann Glendon Appointed To USCIRF

On Wednesday, Senate minority leader Mitch McConnell appointed Mary Ann Glendon to the U.S. Commission on International Religious Freedom, according to a press release from USCIRF. Glendon is Professor of Law at Harvard University, President of the Pontifical Academy of Social Sciences, and former U.S. Ambassador to the Holy See. One vacancy, to be filled by President Obama, remains on the 9-member Commission. When USCIRF was reauthorized late last year, the authorizing legislation required 5 of its commissioners to resign. (See prior posting.)

California City Settles RLUIPA Suit With Buddhist Group

According to the Walnut Patch, the Walnut, California City Council voted Wednesday to approve a $900,000 settlement with the Chung Tai International Chan Buddhist Association in a RLUIPA lawsuit. In 2008, the city denied a conditional use permit to the Association, then known as the Chung Tai Zen Center. The Buddhist group wanted to build a temple on land it owned. The denial led the Zen Center to move to another facility in Pamona. The Justice Department filed a RLUIPA lawsuit, and the Buddhist Association then intervened as a plaintiff in order to attempt to recover damages. The Justice Department settled with the city last year, obtaining changes in the city's zoning policies. (See prior posting.) The settlement involves a public apology by the city as well as the monetary payment.

Thursday, May 24, 2012

Court Upholds Termination of Catholic School Principal, Rejecting Retaliatory Discharge Claim

In Petschonek v. Catholic Diocese of Memphis, 2012 Tenn. App. LEXIS 330 (TN App., May 23, 2012), a Tennessee state appeals court dismissed a retaliatory discharge claim brought by the former principal of a Catholic school against the Diocese of Memphis. Plaintiff claimed that the Diocese terminated her employment in retaliation for her refusal to remain silent about the misuse of $50,000 raised by parents to purchase computer equipment for student use. The court refused to decide whether plaintiff's claim was barred by the ministerial exception doctrine because the issue had not been not been certified for interlocutory appeal, decided by the trial court, or raised as an affirmative defense by the Diocese. However the court added:

In so doing, we express no opinion on whether an action alleging common law retaliatory discharge, a cause of action intended to protect the public by encouraging employees to report an employer's illegal or unethical activity ... is sufficiently similar to a cause of action alleging retaliatory discharge in violation of the ADA, a statute protecting certain individuals from discrimination in the work place, to warrant application of the ministerial exception.

The court however granted summary judgment for defendant, holding that the retaliatory discharge doctrine applies only to employees at will. Plaintiff here was under contract. The contract permitted the Diocese to discharge plaintiff without cause before the end of the contract period, and entitled plaintiff to 30 days' pay if that happened.

George Washington's Letter On Religious Tolerance To Go Back On Public Display

CNN reported yesterday that George Washington's famous 1790 letter to the Hebrew Congregation in Newport, Rhode Island, will go back on public display after sitting in storage for nearly a decade. The Forward, which has pressed for release of the letter, reported earlier this month as well on the agreement with the Morris Morgenstern Foundation. The arrangement permits the letter to be displayed at the National Museum of American Jewish History in Philadelphia for 3 months per year for the next 3 years. The letter (full text) is an early affirmation of religious tolerance in the United States:

It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

The letter will be displayed this year as part of an exhibit titled "To Bigotry No Sanction: George Washington and Religious Freedom," which will run June 29 to September 30.

President Objects To House Passed Defense Bill's LGBT Related Provisions

The U.S House of Representatives last week passed, and sent to the Senate, HR 4310, the 2013 National Defense Authorization Act (full text.) The bill contains two provisions relating to same-sex unions and to broader issues of conscience rights in relation to gays and lesbians. Section 536 of the bill provides in part:

(a) Protection of Rights of Conscience- The Armed Forces shall accommodate the conscience and sincerely held moral principles and religious beliefs of the members of the Armed Forces concerning the appropriate and inappropriate expression of human sexuality and may not use such conscience, principles, or beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.....

(b) Protection of Chaplains- .... (2) No member of the Armed Forces may--

(A) direct, order, or require a chaplain to perform any duty, rite, ritual, ceremony, service, or function that is contrary to the conscience, moral principles, or religious beliefs of the chaplain, or contrary to the moral principles and religious beliefs of the endorsing faith group of the chaplain; or

(B) discriminate or take any adverse personnel action against a chaplain, including denial of promotion, schooling, training, or assignment, on the basis of the refusal by the chaplain to comply with a direction, order, or requirement prohibited by subparagraph (A)....

Section 537 of the bill provides:

A military installation or other property owned or rented by, or otherwise under the jurisdiction or control of, the Department of Defense may not be used to officiate, solemnize, or perform a marriage or marriage-like ceremony involving anything other than the union of one man with one woman.

Last week the White House issued a Statement of Administration Policy objecting to several provisions in the bill. The Statement says in part:

The Administration strongly objects to sections 536 and 537 because those provisions adopt unnecessary and ill-advised policies that would inhibit the ability of same-sex couples to marry or enter a recognized relationship under State law. Section 536 would prohibit all personnel-related actions based on certain religious and moral beliefs, which, in its overbroad terms, is potentially harmful to good order and discipline. Section 537 would obligate DOD to deny Service members, retirees, and their family members access to facilities for religious ceremonies on the basis of sexual orientation, a troublesome and potentially unconstitutional limitation on religious liberty.

LifeSite News on Tuesday reported on the controversy over these provisions.

New Hampshire High Court Upholds Partial Tax Exemption For Church Property

In Appeal of Liberty Assembly of God, (NH Sup. Ct., May 22, 2012), the New Hampshire Supreme Court held that under state statutory law, space in a house of worship must be used and occupied directly for religious training or for other religious purposes in order to be tax exempt. It thus upheld a decision of the New Hampshire Board of Tax and Land Appeals exempting only 60% of a church's main building. The court observed, however: "that an apportionment inquiry 'must not be taken to an absurd extreme so that every square foot of a building is rigidly scrutinized. Rather, . . . judgment is the touchstone.'" The court also rejected the argument that civil authorities would become unconstitutionally entangled with religion, in violation of the Establishment Clause, if they examine the religious uses and purposes of each room in the main building. The Concord Monitor reports on the decision.

Wednesday, May 23, 2012

Egyptian Court Convicts 12 Christians In Sectarian Violence; Acquits Muslims

On Monday, Egypt's State Security Court sentenced 12 Christians to life in prison after they were found guilty of sowing public strife, possessing illegal weapons and killing two Muslims in Minya province last April. Eight Muslims were acquitted of possessing illegal weapons and burning down Christian-owned homes and businesses. AP reports:

The religious tension in Minya spilled over into violence last year when a Muslim microbus driver, angered by a speed bump outside a wealthy Christian man's villa, got into a scuffle with security guards who beat him.

After returning to his village ... that evening, he rounded up the villagers who then gathered outside an ultraconservative Islamist group's main office there to protest his beating.... [T]he Christians nearby thought they were going to be attacked and shot from their rooftops down at the crowd, killing two and wounding two others.

For several days after, angry villagers torched dozens of Christian homes and stores.

The sentences are not appealable, and only the ruling military council can request a retrial.

Jury Holds Baptist Convention Liable For Abuse By Minister It Sponsored

The Orlando Sentinel and Louisville Courier Journal report on a jury's verdict last week in state court in Tavares, Florida, holding the Florida Baptist Convention liable for sexual abuse of a 13-year old boy by a former pastor. Douglas Myers, who is serving a 7-year prison sentence after pleading guilty to molesting the boy in 2005, founded two churches in Lake County, Florida, after receiving funding and training from the Convention. The Convention ran a background check on Myers, but did not call his references or his prior churches where there had been allegations of sexual abuse against him. This is the first time the Convention has been held liable in a case like this. Baptist churches are run independently, but here the Convention was more involved since it sponsored him as a "church planter".

India's Parliament Allows Separate Registration of Sikh Marriages

The Tribune (Chandigarh, India) reports that both houses of India's Parliament this week passed a long-pending amendment to the Anand Karaj Act 1909 that will now allow separate registration of Sikh marriages solemnized under the Anand Karaj ritual. The bill will become law when the President assents to it. The new law however is only a first step toward Sikhs obtaining separate recognition. India's Constitution (Art. 25) still defines Sikhs as Hindus. The new law is not even a full separate Sikh marriage law, since it says nothing about divorce. It merely will permit the central government to direct states to maintain separate marriage registers for Sikhs and designate separate bodies to register Sikh weddings.

Details on Monday's Lawsuits By Catholic Groups Challenging Health Insurance Mandate

Tuesday, May 22, 2012

Article Faults Operation of School-Choice Scholarship Tax Credit Programs

Today's New York Times carries a long front-page story on abuses in school-choice scholarship tax credit programs. The programs generally give individuals or corporations tax credits for their donations to private non-profit scholarship organizations that, in turn, distribute scholarship funds to students in private schools, mostly religiously affiliated ones. Here is an excerpt from the extensive report:

Spreading at a time of deep cutbacks in public schools, the programs are operating in eight states and represent one of the fastest-growing components of the school choice movement. This school year alone, the programs redirected nearly $350 million that would have gone into public budgets to pay for private school scholarships for 129,000 students....

While the scholarship programs have helped many children whose parents would have to scrimp or work several jobs to send them to private schools, the money has also been used to attract star football players, expand the payrolls of the nonprofit scholarship groups and spread the theology of creationism, interviews and documents show. Even some private school parents and administrators have questioned whether the programs are a charade.

Most of the private schools are religious. Nearly a quarter of the participating schools in Georgia require families to make a profession of religious faith, according to their Web sites. Many of those schools adhere to a fundamentalist brand of Christianity. A commonly used sixth-grade science text retells the creation story contained in Genesis, omitting any other explanation. An economics book used in some high schools holds that the Antichrist — a world ruler predicted in the New Testament — will one day control what is bought and sold.

Vatican Says Leaking Of Confidential Letters Was A Criminal Act

Reacting to a recently published book, the Vatican press office last week issued a statement saying: "The latest publication of documents of the Holy See and private documents of the Holy Father can no longer be considered a questionable – and objectively defamatory – journalistic initiative, but clearly assumes the character of a criminal act." According to a report by CNA yesterday, the statement comes in response to the book by Italian journalist Gianluigi Nuzzi, Sua Santita (His Holiness) which sets out a series of leaked letters addressed personally to Pope Benedict XVI. Last month the Pope set up a special commission of 3 cardinals to investigate the source of the leaks.

Group Claims Baptist Church Violated Limits On Non-Profit Political Involvement

According to a press release yesterday from Americans United, the organization has written the Internal Revenue Service (full text of letter) asking it to investigate whether a Kentucky Baptist church has violated the rules that preclude Sec. 501(c)(3) non-profit organizations from becoming involved in political elections by endorsing or opposing candidates. At issue is the sermon delivered by Pastor Ronnie Spriggs of Hager Hill Freewill Baptist Church in Hager Hill, Kentucky in which he took issue with President Obama's backing of same-sex marriage and said:

We need to really be prayerful, and we need to get active. If you’ve ever opened your mouth, you better open it now. Between now and November, God’s people ought to thunder this country. We ought to let this country know that we will not be silent on these issues....

You know why that Obama said he believes that? Because the polls represent more people in the United States believe they ought to marry than others do. So this is an advantageous time. You know what we got to show him? There’s more saved people in the United States then he thinks there are. And if we don’t voice our opinion now, we’ll lose our country….

New Lawsuits Challenge Health Insurance Contraceptive Coverage Mandate

Politico reports that 12 new lawsuits were filed yesterday around the country by some 40 Catholic institutions challenging the Obama administration's mandate requiring contraceptive coverage in health insurance policies these institutions offer to their employees and, in the case of universities, to students. Among the suits-- all coordinated by the Jones Day law firm-- is one filed in federal district court in Indiana by the University of Notre Dame. (Full text of complaint.) Commenting on the lawsuits (full text of statement), Cardinal Timothy M. Dolan, president of the U.S. Conference of Catholic Bishops, said:

We have tried negotiation with the Administration and legislation with the Congress – and we’ll keep at it – but there's still no fix. Time is running out, and our valuable ministries and fundamental rights hang in the balance, so we have to resort to the courts now.....

Monday, May 21, 2012

Move of Prayer To Precede City Council Meeting Draws Protest

Mount Vernon, Ohio's city council has traditionally opened its 7:30 meetings with a prayer. Yesterday's Columbus Dispatch reports that after council received a letter from atheist Ryan Kitko, a graduate student at Ohio State University, asking council to drop the prayer in order to respect the city as a diverse community, council president Bruce Hawkins moved the prayer 2 minutes earlier so it would precede the meeting. However, near the end of the council meeting, 4 council member spoke out against the change, and complaints from members of the public ensued.

Poland's Agriculture Minister Rejects Challenge To Ritual Slaughter

Poland's Agricultural Minister Marek Sawicki said last week that he rejects demands of animal rights activists to end kosher and halal slaughter in Poland. He says that ritual slaughter is permitted under European Union law, and that banning it would be inconsistent with Poland's constitutional protection of religious freedom According to JTA, the minister of agriculture has exempted ritual slaughter from the requirement that animals be stunned before slaughter. Activists have asked the country's prosecutor to determine if this violates Polish law. In connection with the controversy, a Polish newspaper charges that the slaughterhouses where ritual slaughter is performed are owned by a colleague of the Agriculture Minister.

Canon Lawsuit Planned Against Georgetown University Over Deviations From Doctrine

CNA yesterday reported on the petition posted online at the website of the newly formed Father King Society to Make Georgetown Honest, Catholic and Better. Founded by Georgetown alumnus William T. Blatty, author of the best-selling book The Exorcist, the organization is seeking to file a canon law lawsuit seeking a declaration that Georgetown University is no longer entitled to call itself Catholic or Jesuit, or alternatively seeking a Visitation to correct what is described as the University's:

twenty-one year refusal to comply fully with the law of the Church through the implementation of the general norms of Ex corde Ecclesiae and its eleven year non-compliance with certain particular norms adopted for the United States, which has led directly and indirectly to the tolerance and promotion of deviations from authentic doctrinal and moral teachings by Georgetown University authorities and a long series of Scandals to the faithful through actions inconsistent with a Catholic identity.

The organization's website details more specifically Blatty's concerns. The planned canon lawsuit was announced on the same day the HHS Secretary Kathleen Sebelius-- a controversial figure among Catholic institutions-- spoke at an awards ceremony during Georgetown's commencement weekend.

Sunday, May 20, 2012

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.]

Saturday, May 19, 2012

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.

Friday, May 18, 2012

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.

Thursday, May 17, 2012

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.]

Wednesday, May 16, 2012

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.

Tuesday, May 15, 2012

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.

Monday, May 14, 2012

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.

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.

Sunday, May 13, 2012

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.

Saturday, May 12, 2012

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.

Friday, May 11, 2012

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.]

Thursday, May 10, 2012

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.

Wednesday, May 09, 2012

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.