Idaho Says Vodka's Label Could Be Offensive To Mormons; Decision Challenged On Constitutional Grounds

Jonathan Turley reports that yesterday, on behalf of his client Ogden's Own Distillery, he wrote the director of the Idaho Liquor Division objecting on 1st and 14th Amendment grounds to the state's refusal to approve the sale of "Five Wives Vodka" in Idaho. (Full text of letter.) A Liquor Division official said that an important factor in the denial is that the name and packaging could be offensive to members of the Church of Jesus Christ of Latter-Day Saints, as well as to women. The Distillery argues that the refusal violates the Establishment Clause, denies free speech, due process and equal protection, and violates the commerce clause.

UPDATE: Jonathan Turley reports that in a letter sent May 6, Idaho has agreed to lift its ban on special orders of Five Wives Vodka and is prepared to consider approving general listing for the vodka at the Liquor Division's next meeting with brokers in July. [Thanks to Don Byrd for the update lead.]

New Science May Modify Debate On Contraceptive Coverage Mandate

Surprising scientific disclosures in a lengthy New York Times article today could change the debate over the Obama administration's health insurance contraception coverage mandate. The free exercise challenges to the mandate have been given special force because the mandate covers Plan B and Ella-- so-called morning-after pills-- which until now had been thought by most of the public to prevent implantation of a fertilized egg in the wall of the uterus.  That is seen by many objectors as equivalent to abortion. (Background.) The Times discloses however that this is not the way the morning-after pill works.  Instead it delays ovulation.  The article traces how the information on preventing implantation came to appear on FDA-required labels. However, Richard Doerflinger, associate director of the Secretariat of Pro-Life Activities for the United States Conference of Catholic Bishops says: "So far what I see is an unresolved debate and some studies on both sides...."

9th Circuit Denies En Banc Review In Proposition 8 Case

As reported by The Recorder, the U.S. 9th Circuit Court of Appeals yesterday denied en banc review in Perry v. Brown.  In the case in February, a 3-judge panel (by a 2-1 vote) struck down Proposition 8 that eliminated the right for same-sex couples to marry. (See prior posting.) However the court stayed the mandate in the case pending any petition to the Supreme Court for review and until final disposition by the Supreme Court. In denying en banc review, the 9th Circuit issued an order along with a dissent by 3 judges, plus a response to the dissent by two others. (Full text.) The dissent, written by Judge O'Scannlain, said in part:

A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same sex marriage as a policy matter.  Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”  

Today our court has silenced any such respectful conversation.  Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia....  Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.

The response, written by Judge Reinhardt expressed puzzlement over the dissenters' "unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion."

New Ontario Anti-Bullying Law Generates Catholic Opposition Over Required "Gay-Straight Alliances" In Schools

The Toronto Globe and Mail reports that yesterday Ontario's Legislative Assembly passed by a vote of 65-36 the third and final reading of Bill 13, the Accepting Schools Act (full text). The bill will become law later this month when it receives Royal Assent. The law, which is designed to prevent and punish bullying in government funded Catholic schools as well as public schools, has generated opposition from from the Assembly of Catholic Bishops of Ontario because of its requirement that all schools support "activities or organizations that promote the awareness and understanding of, and respect for, people of all sexual orientations and gender identities, including organizations with the name gay-straight alliance...."  As reported by an earlier Globe and Mail article, Catholic schools want to be able to use a different name for student clubs that encourage respect for all students, objecting to the use of the word "gay" or "rainbow" in the names of the groups. The controversy is apparently part of the larger debate over government funding of Catholic schools in Ontario.

Churches Challenge Philadelphia's Ban On Feeding Programs In Parks

In Pennsylvania, a group of churches and church leaders have filed suit in federal district court challenging the constitutionality of regulations and policies adopted by Philadelphia's city government in anticipation of the opening of the Barnes Foundation's relocated art collection in downtown Philadelphia.  The new regulations operate to close down the churches' decade-long programs of feeding of the homeless outdoors in Philadelphia's public parks.  The complaint (full text) in Chosen 300 Ministries, Inc. v. City of Philadelphia, (ED PA, filed 6/5/2012), alleges that these governmental actions were designed to remove the food program and homeless persons from the vicinity of a new art gallery in order to bolster the city's public image.  Plaintiffs claim the city's action violate their 1st Amendment free exercise and free speech rights, as well as their rights under the Pennsylvania Religious Freedom Protection Act. The complaint claims that the regulations target religiously sponsored feeding programs, while creating exceptions to permit social, family or business picnics, and  outdoor commercial food service. The ACLU issued a press release announcing the filing of the lawsuit.

7th Circuit: No Taxpayer Standing To Challenge Bald Knob Cross Grant

In Sherman v. State of Illinois, (7th Cir., June 4, 2012), the U.S. 7th Circuit Court of Appeals held that activist and atheist Robert Sherman lacks taxpayer standing to challenge a $20,000 grant by the Illinois Department of Commerce and Economic Opportunity to Friends of the Cross for restoration of the Bald Knob Cross, an Illinois tourist attraction. Nor can he force Friends of the Cross to return the funds to the state.  Under the Supreme Court's decision in Hein v. Freedom from Religion Foundation, Inc., taxpayers have standing to bring an Establishment Clause challenge only where funds have been spent pursuant to a legislative mandate, and not where the spending decision was an administrative one under a general appropriation. The 7th Circuit held that the procedure in Illinois under which an administrative agency makes grants from a general appropriation pursuant to patronage-based decisions from legislative political leaders is not the same as a specific legislative appropriation. The court said:

It is not enough to say that Friends was "specifically selected" by the legislative leadership for the grant, as we see no room in the Supreme Court’s decisions for the Realpolitik approach that Sherman urges.

(See prior related posting.)

Kuwaiti Trial Court Sentences Man To 10 Years For Blasphemous Tweets

Christian Post reported yesterday that a Kuwaiti trial court has sentenced 26-year old Hamad al-Naqi to 10 years in prison for making insulting comments about Islam on Twitter.  According to Gulf News, prosecutors charged that between February 5 and March 27, al-Naqi posted comments and tweets that insulted Prophet Mohammad, his companions Abu Baqer, the first Caliph, and Omar, the second caliph, and his wife Aisha. He also, it was charged, insulted the political regimes in two Gulf Cooperation Council countries. Al-Naqi claims that he did not compose the tweets, and that his account was hacked.  Al-Naqi's lawyer says they will appeal and are optimistic about their chances of success.

Refusing To Provide Photography Services To Same-Sex Ceremony Violates State Anti-Discrimination Law

In Elane Photography, LLC v. Willock, (NM Ct. App., May 31, 2012), a New Mexico state appeals court held that a photography firm's refusal to provide its services to photograph a same-sex commitment ceremony violates the New Mexico Human Rights Act's prohibition on discrimination in public accommodations on the basis of sexual orientation.  According to the court:

Elane Photography’s owners are Christians who believe that marriage is a sacred union of one man and one woman.  They also believe that photography is an artistically expressive form of communication and photographing a same-sex commitment ceremony would disobey God and the teachings of the Bible by communicating a message contrary to their religious and personal beliefs.

Rejecting Elane Photography's free expression arguments, the court held:

the mere fact that a business provides a good or service with a recognized expressive element does not allow the business to engage in discriminatory practices.... While Elane Photography does exercise some degree of control over the photographs it is hired to take... this control does not transform the photographs into a message from Elane Photography.

The court also rejected Elane Photography claim that applying the Human Rights Act to it would violate its free exercise of religion protected by the U.S. and New Mexico constitutions. It held that the statute is a neutral law of general applicability. Finally it rejected a claim under the New Mexico Religious Freedom Restoration Act, concluding that it applies only to suits in which government agencies are the adverse parties, not to suits against a private individual or business.  Volokh Conspiracy has an extensive discussion of this aspect of the case, as well as a posting on its more general holding.

Judge Wechsler filed a concurrence in the case, arguing that the New Mexico constitution's free exercise clause is broader than that in the First Amendment, but also concluding that Elane Photography had not properly preserved that issue for appeal. WND reports on the decision.

Defendant Says Threatening Letter Was Divinely Inspired

Last year the U.S. Department of Justice filed a civil lawsuit against Kansas resident Angel Dillard under the Freedom of Access to Clinic Entrances Act.(Full text of complaint.) She was charged with sending a threatening letter to a Wichita doctor who is training to provide abortion services.  The letter, which warned that some day explosives may be placed under the doctor's car, was a particular concern because Dillard had befriended Scott Roeder after he was convicted of murdering abortion provider Dr. George Tiller. (See prior related posting.) Yesterday AP reported that Dillard has now filed a counterclaim, contending that "she was inspired by God" to send the threatening letter. She believes that her message was "divinely inspired" and should be within the 1st Amendment's protection of speech and religion. Dillard says that the government's lawsuit and related publicity led to her losing ministry positions at her church and at the Sedgwick County Detention Center
.

8th Circuit: Trial Court Must Consider RFRA Challenges To Contempt Citations

In United States v. Ali, (8th Cir., June 4, 2012), the U.S. 8th Circuit Court of Appeals vacated 19 criminal contempt citations issued by a Minnesota federal district court against a Muslim defendant who, for religious reasons, refused to stand when the court convened and recessed.  The disputed conduct occurred during defendant's trial for providing material support to a designated foreign terrorist organization. After defendant failed to stand at the status conference for her case, the trial court had issued a specific order requiring all parties to follow the Rules of Decorum set forth by the Court.  The 8th Circuit held that the district court, in rejecting defendant's challenge to the order, had considered her 1st Amendment challenges, but had failed to consider her challenges under the Religious Freedom Restoration Act:

Because the district court applied only a First Amendment analysis, it never evaluated whether the pretrial order was  the least restrictive means to achieve a compelling government interest, as required by RFRA.

The 8th Circuit, however, upheld defendant's criminal contempt conviction on the first contempt citation against her, because she had at that point disobeyed the trial court's order without formally challenging it. AP reports on the decision.

6th Circuit Rejects Establishment Clause Challenge To AIG Bailout On Standing Grounds

In Murray v. U.S. Department of Treasury, (6th Cir., June 1, 2012), the U.S. 6th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to the federal government's 2008 bailout of American International Group, Inc. (AIG). Plaintiff complained that federal dollars were committed to a company whose subsidiaries market and sell Sharia-compliant financial products. The district court dismissed on the merits, finding that the government had a secular purpose and did not become excessively entangled in religion. (See prior posting.) The 6th Circuit affirmed the dismissal but instead relied on plaintiff's lack of standing, finding that the challenged spending resulted from executive branch decisions, not a specific Congressional mandate.

Recent Articles of Interest

From SSRN:

• Richard W. Garnett, Neutrality and the Good of Religious Freedom: An Appreciative Response to Professor Koppelman, (Pepperdine Law Review, Vol. 39, p. 1001, 2012).
• Jeff Redding, What American Legal Theory Might Learn from Islamic Law: Some Lessons About 'The Rule of Law' from 'Shari‘a Court' Practice in India, (University of Colorado Law Review, Vol. 83, p. 1027, 2012).
• Pauline M. Kruiniger, Article 16 of the Women’s Convention and the Status of Muslim Women at Divorce, (In: I. Westendorp (ed.), The Women's Convention Turned 30: Achievements, Setbacks, and Prospects, Antwerp: Intersentia, Forthcoming).
• Edward A. Zelinsky, Do Religious Tax Exemptions Entangle in Violation of the Establishment Clause? The Constitutionality of the Parsonage Allowance Exclusion and the Religious Exemptions of the Individual Health Care Mandate and the Fica and Self-Employment Taxes, (Cardozo Legal Studies Research Paper No. 362, March 2012).
• Adam Shinar and Anna Su, Religious Law as Foreign Law in Constitutional Interpretation, (International Journal of Constitutional Law, Forthcoming).
• Jonathan C. Augustine and Roslyn Satchel Augustine, Religion, Race and the Fourth Estate: Xenophobia in the Media Ten Years after 9/11, (Tennessee Journal of Race, Gender & Social Justice, Vol. 1, Issue 1, pp. 1-56, 2012).
• Timothy J. Tracey, Christian Legal Society v. Martinez: In Hindsight, (University of Hawaii Law Review, Forthcoming).

From SmartCILP:

• Raymond C. Pierce, The First Amendment "Under God": Reviewing the Coercion Test in Establishment of Religion Claims, [Abstract], 35 Hamline Law Review 183-228 (2012).
• Khaled Abou El Fadl, Donald A. Giannella Memorial Lecture. Conceptualizing Shari'a in the Modern State, 56 Villanova Law Review 803-817 (2012).
• Kari Mercer Dalton, The Priest-Penitent Privilege v. Child Abuse Reporting Statutes: How to Avoid the Conflict and Serve Society, [Abstract], 18 Widener Law Review 1-25 (2012).
• Kellen Zale, God's Green Earth? The Environmental Impacts of Religious Land Use, 64 Maine Law Review 207-237 (2011).

From Engage: Vol. 13, Issue 1 (March 2012):

• Carl H. Esbeck, A Religious Organization's Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment.
• David W. Scott, The Ohio Constitution of 1803, Jefferson's Danbury Letter, and Religion in Education.
• Elizabeth K. Dorminey, Veiled Meaning: Tolerance and Prohibition of the Hijab in the U.S. and France.
• Michael B. Mukasey, Eleventh Annual Barbara K. Olson Memorial Lecture.

Chinese Clamp Down On Tibetan Monastery Leads To Wave of Self-Immolations

Today's New York Times reports that Chinese control of the Kirti Monastery in Tibet and the city of Ngaba in which the monastery is located has led to the largest wave of self-immolations in modern history.  At least 38 Tibetans have set themselves afire since 2009.  Of those, 15 were monks or former monks from Kirti. A Chinese occupation of the monastery has radicalized it over the last four years.

Harsh Islamic Law Imposed In Northern Mali

The New York Times today reports on the dismal situation in Timbuktu, in northern Mali, since Islamists have taken over. It explains:

All of northern Mali, an area the size of France, has been in the hands of a loose coalition of Islamists and nomadic Tuareg rebels since late March, when resistance by the Malian Army collapsed after a coup d’état by junior military officers in the capital.

Since the takeover, however, the Islamists of Ansar Dine, supported by Al Qaeda, have gained the upper hand over the Tuaregs, and they are aggressively promoting their brand of Islamic law.

The paper summarizes the situation:

Women are now forced to wear full, face-covering veils. Music is banned from the radio. Cigarettes are snatched from the mouths of pedestrians. And the look of the ancient mud-brick town is changing. A centuries-old monument, the shrine of a 15th-century saint, has been defaced; bars have been demolished; and black flags have been hung around town to honor Ansar Dine, or Defenders of the Faith, the radical Islamist movement that emerged from the desert and turned life upside down.

Recent Prisoner Free Exercise Cases

In Ekene v. Cash, 2012 U.S. Dist. LEXIS 74786 (CD CA, May 30, 2012), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 155244, Sept. 13, 2011)  and dismissed, with leave to amend, an inmate's complaint that a correctional officer confiscated his Bible when he was placed on management cell status, thereby depriving him of the opportunity to do his daily devotions.

In Morris v. Yates, 2012 U.S. Dist. LEXIS 74896 (ED CA, May 30, 2012), a California federal magistrate judge, in recommending a denial of an inmate's habeas corpus petition, concluded that petitioner had not shown that he was prejudiced at trial by the prosecutor wearing a small cross as a necklace.

In Cullen v. Illinois Department of Human Services, 2012 U.S. Dist. LEXIS 75483 (CD IL, May 31, 2012), an Illinois federal district court dismissed, with leave to file an amended complaint, a lawsuit by a former inmate challenging the Illinois correctional system's endorsement, funding, and implementation of a 12-step program based on Alcoholics Anonymous' religious model.

In Johnson v. Randle, 2012 U.S. Dist. LEXIS 75080 (SD IL, May 31, 2012), a Buddhist inmate, on a Locto-Ovo-Vegetarian diet for religious reasons, was permitted to move ahead with his free exercise and RLUIPA claims for injunctive relief.  Plaintiff claims that his religious exercise is burdened by a prison rule that requires those on special diets to to to the back of the chow line and receive their meals last. This gives him inadequate time to eat, thus, he alleges, pressuring him to  abandon his religious beliefs.

In Kruger v. Kaemingk, 2012 U.S. Dist. LEXIS 75640 (D SD, May 30, 2012), a South Dakota federal district court permitted an inmate to move ahead with his complaint that prison officials have refused his requests for a place and time to conduct Messianic Jewish worship services.

9th Circuit: Tribe Delays Mining Under Endangered Species Act Because of Religious and Spiritual Concerns

In Karuk Tribe of California v. United States Forest Service, (9th Cir., June 1, 2012), the U.S. 9th Circuit Court of Appeals en banc agreed with the federal district court that the Karuk Indian Tribe has standing to challenge the continuation of gold mining operations along the Klamath River and its tributaries because these operations may, among other things, impact the Tribe’s ability to enjoy the spiritual, religious, subsistence, recreational, wildlife, and aesthetic qualities of the areas affected by the mining operations. Then in a 7-4 decision, the majority held that the Forest Service violated the Endangered Species Act when it allowed mining operations to proceed in areas of critical habitat for coho salmon without first consulting appropriate wildlife agencies. The New York Times reports on the decision.

Court Rules Town Meeting Prayer Violates Vermont Constitution

In Hackett v. Town of Franklin, (VT Super. Ct., May 29, 2012), a Vermont trial court held that a town's practice of including a prayer at its town meetings violates Art. 3 of the Vermont constitution that prohibits a person from being "compelled to attend any religious worship." The prayer was regularly led by a local Christian minister. The court enjoined the town from continuing such prayers in the future, and it also scheduled a further hearing on damages that should be awarded to plaintiff. However, the court held that town meeting prayer does not violate the "compelled support" clause of Vermont's constitution (Art. 3) nor its statutory prohibition on religious discrimination in public accommodations. A release from the Vermont ACLU reports on the decision, and links to all the pleadings in the case.

Court Upholds City's Holiday Display and Rejection of Anti-Religious Sign

In Freedom from Religion Foundation, Inc. v. City of Warren, Michigan, 2012 U.S. Dist. LEXIS 75464 (ED MI, May 31, 2012), a Michigan federal district court upheld Warren, Michigan's 2011 holiday display in the Atrium entrance area of city hall. The display included a Nativity scene, but the mayor refused to include an FFRF sign that read in part: "There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but myth and superstition...."  The court concluded that the holiday display was overwhelmingly secular in nature, despite the inclusion of the Nativity scene, and that the FFRF sign was properly excluded from the display, which was a limited public forum:

[T]he Mayor sets forth permissible bases for denial—that the Sign was meant to counter the Nativity Scene, not celebrate the holiday season, and that the anti-religious language of the sign, in this context, could lead to a disruption of city business. There is nothing indicating the Mayor denied placement of the Sign solely in defense of religion; religion was simply not the appropriate subject-matter.

Southern Baptist Public Policy Spokesman Reprimanded For Trayvon Martin Comments

Baptist Press reported on Friday that the executive committee of the Southern Baptist Convention's Ethics & Religious Liberty Commission has issued two reprimands to Richard Land, president of the Commission and its prominent spokesman on public policy issues.  The reprimands grew out of Land's comments on March 31 regarding the Trayvon Martin shooting.  The comments, made on Land's March 31 radio show, "Richard Land Live!", criticized African-American leaders such as Jesse Jackson, Al Sharpton and Louis Farrakhan (April 10 Baptist Press report), saying: that "they need the Trayvon Martins to continue their central myth: America is a racist and an evil nation. For them, it's always Selma, Ala., circa 1965. They haven't noticed that the nation has changed."  Land contended that criticism by African-American leaders was politically motivated:

Instead of letting the legal process take its independent course, race mongers are anointing themselves judge, jury and executioners.... This is being done to try to gin up the black vote for an African American president who is in deep, deep, deep trouble for reelection and who knows that he cannot win reelection without getting the 95 percent of blacks who voted for him in 2008 to come back out and show that they're going to vote for him again,

Land issued a length apology on May 9, a week after meeting with key Baptist African-American clergy. The reprimands issued Friday criticized Land's "hurtful, irresponsible, insensitive, and racially charged words" and also criticized his lifting of those remarks from a Washington Times column without attribution. The Executive Committee also indicted that it is terminating Land's radio show.

Virginia County Again Modifies Display of 10 Commandments In School

As previously reported, the ACLU last year filed suit in a Virginia federal district court on behalf of a high school student and the student's parent challenging the posting of Ten Commandments displays in the Giles County, Virginia Public Schools. Last month, the judge ordered the case to mediation. (See prior posting.) Now, according to the Roanoke Times, the Giles County School Board yesterday voted unanimously to replace the Ten Commandments text that is displayed at Narrows High School with a copy of a page from a history textbook captioned "Roots of Democracy".  That page includes a depiction of the Ten Commandments tablets, but without the full text of the Commandments, with the explanation: "The values found in the Bible, including the Ten Commandments and the teachings of Jesus, inspired American ideas about government and morality." The page also depicts Greco-Roman, Enlightenment, and English Parliamentary roots of American government.  This is the third version of the Ten Commandments display, as the School Board struggles with how to respond to legal challenges. (See prior posting.)  [Thanks to Scott Mange for the lead.]

Hate Crimes Prevention Act Is Constitutional and Covers Intra-Religious Violence

In United States v. Mullet, (ND OH, May 31, 2012), an Ohio federal district court upheld the constitutionality of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act against commerce clause and First Amendment challenges.  The case involves the indictment of 16 members of an Amish community led by Sam Mullet who are charged with attacking and cutting off the beards and hair of members of a rival Amish community who did not comply with Mullet's directives. (See prior posting.) The court held that because the Hate Crimes law requires an explicit nexus between defendants conduct and interstate commerce, it is a constitutional exercise of Congress' lawmaking power. The court also rejected a claim that the statute infringes defendants' freedom of expression and free exercise of religion, saying that "the First Amendment has never been construed to protect acts of violence against another individual, regardless of the motivation or belief of the perpetrator."  The court rejected defendants' claim that the Hate Crimes Prevention Act does not cover intra-religious violence. The court said:

While hate crimes are often committed by members of one religious (or racial or ethnic) group against another, history is replete with examples of internecine violence. 

Finally, the court rejected the argument that the Hate Crimes Prevention Act violates the Religious Freedom Restoration Act. AP reports on the decision.

Online Resource On Challenges To Health Insurance Contraceptive Services Mandate Launched

As reported by Eurasia Review, the Becket Fund last week launched the HHS Mandate Information Central, an online resource for reporters and the public on the 23 separate lawsuits that have been filed to challenge the federal mandate that health insurance policies cover contraceptive services. The webpage links to legal documents, press releases and other materials for each case, as well as furnishing more general background material on the mandate.

Suit Challenges High School Graduation Prayer Policy

The Freedom From Religion Foundation announced Wednesday that it, along with one of its members who is a graduating senior at Irmo High School, has filed a federal lawsuit suit against a South Carolina school district challenging the district's policy that allows a student vote each year on whether or not to have prayer at the high school graduation ceremony.  The complaint (full text) in Nielson v. School District Five of Lexington & Richland Counties, (D SC, filed 5/30/2012), alleges that the policy violates the Establishment Clause and Equal Protection Clause. The district superintendent had told plaintiff, when he complained about the policy: "while I am a staunch supporter of the separation of Church and State, I do not believe that Freedom of Religion should be interpreted as requiring Freedom from Religion within the public schools." Cranston Patch reports on the lawsuit.

Obama Speaks At White House Reception For Jewish American Heritage Month

President Obama spoke on Wednesday at a reception in the East Room of the White House marking Jewish American Heritage Month. (Full text of remarks.) In his remarks, he reminded his audience of a sometimes forgotten episode in American history:

This year, we celebrate ... Jewish American Heritage Month, and we're also commemorating an important anniversary. One hundred-fifty years ago, General Ulysses Grant issued an order –- known as General Orders Number 11 –- that would have expelled Jews, “as a class,” from what was then known as the military department of the Tennessee.  It was wrong.  Even if it was 1862, even if official acts of anti-Semitism were all too common around the world, it was wrong and indicative of an ugly strain of thought.

But what happened next could have only taken place in America. Groups of American Jews protested General Grant’s decision.  A Jewish merchant from Kentucky traveled here, to the White House, and met with President Lincoln in person.  After their meeting, President Lincoln revoked the order -- one more reason why we like President Lincoln.  (Laughter and applause.)

And to General Grant’s credit, he recognized that he had made a serious mistake.  So later in his life, he apologized for this order, and as President, he went out of his way to appoint Jews to public office and to condemn the persecution of Jews in Eastern Europe.

1st Circuit Invalidates Defense of Marriage Act

Today in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (1st Cir., May 31, 2012), the U.S. First Circuit Court of Appeals held unconstitutional Section 3 of the Defense of Marriage Act that denies federal benefits to same-sex couples (and surviving same-sex spouses) lawfully married in Massachusetts. The 3-judge panel (composed of 2 judges nominated by Republican presidents and 1 nominated by a Democratic president) was unanimous in its decision. The court said:

This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.  In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation.  We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine--not to create some new category of "heightened scrutiny" for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.

Describing recent Supreme Court equal protection decisions, the 1st Circuit said:

In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification.  In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.

Concluding that "Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest," the court explained:

In reaching our judgment, we do not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality.  The many legislators who supported DOMA acted from a variety of motives, one  central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization.  ...

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute....  But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today.  One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.

CNN reports on the decision.

Malaysian Federal Court Upholds Licensing of Muslim Teachers

A 5-judge panel of Malaysia's Federal Court has upheld the constitutionality of Sec. 53(1) of the state of Negeri Sembilan's Syariah Criminal Enactment 1992 which outlaws Muslims teaching Islam without accreditation by the state's Islamic Religious Council.  Malaysian Insider reported yesterday that a challenge to the law was brought by a Muslim counselor with the Patient Counseling Division of the National Heart Institute who (along with another defendant) faces a fine and up to two years in jail for delivering a religious talk at a celebration of the Prophet Muhammad's birthday in 2010. Plaintiffs claimed that the law exceeds the powers of the state's legislature. In upholding the state law, the Federal Court said:

We are of the view that it is necessary in this day and age for the authority to regulate the teachings or preachings of the religion in order to control, if not eliminate deviant teachings. The integrity of the religion needs to be safeguarded at all costs. That is what Section 53 of the enactment purports to do.

Pakistan Indicts Former Officials On Hajj Corruption Charges

In Rawalpindi, Pakistan on Wednesday, a trial court indicted former minister for Religious Affairs Syed Hamid Saeed Kazmi, former Hajj director general Rao Shakeel and former Hajj joint secretary Aftab-ul-Islam Raja in a case charging corruption in connection with administering hajj arrangements.  According to The News and Central Asia Online, the three are charged with arranging housing for Pakistan's Hajj pilgrims in Saudi Arabia at exorbitant rates, taking kickbacks for doing so, and making advance payments in violation of Pakistani policy. It is variously reported that the indictments relate to arrangements in 2009 or in 2010. (See prior related posting.)

Secular Coalition Seeking To Create State Offices

National Journal reported yesterday that the Secular Coalition for America has launched a drive to create state chapters of the organization in all 50 states. Up to now, SCA has focused on lobbying at the federal level.  The state chapters will be run by volunteers and will not have office space. They will focus on state and local legislation that threatens separation of church and state.

Lawsuits Seek Same-Sex Marriage Rights In Illinois

Two lawsuits were filed yesterday in federal district court in Illinois seeking to strike down provisions of Illinois law that bar the issuance of marriage licenses to same-sex couples and prevent legal recognition of same-sex marriages.  The suits allege that denial of same-sex couples the right to marry violates various provisions of the Illinois constitution.  As announced in an ACLU press release, one suit was filed by the ACLU on behalf of nine couples, and the other by Lambda Legal on behalf of 16 couples.  The suits are Lazaro v. Orr, (IL Cir. Ct., filed 5/30/ 2012) (full text of complaint) and Darby v. Orr,, (IL Cir. Ct., filed 5/30/2012) (full text of complaint). Illinois law provides for same-sex civil unions, but not same-sex marriages. (See prior posting.)

New York Transit Authority Settles Religious Accommodation Suit With Justice Department

The U.S. Department of Justice announced yesterday that it has reached a settlement agreement with the New York City Transit Authority in a Title VII religious discrimination case that the Department of Justice filed in 2004.  The suit alleges that after 9-11, NYCTA began enforcing its previously unenforced head wear policy in a discriminatory manner against Muslims and Sikhs.  The Transit Authority refused to accommodate religious beliefs that preclude attaching an NYCTA logo to a khimar or turban, moving non-complying employees out of public contact positions. Under yesterday's agreement, which still requires federal court approval, the Transit Authority must adopt new uniform head wear policies that allow employees in public contact positions to wear khimars, yarmulkes, turbans, kufis, skullcaps, tams and headscarves without attaching anything to them. It must also implement a new religious accommodation policy and train personnel in implementing it.  In addition, it must divide $184,500 in damages among current and former employees whose religious beliefs were not accommodated.

Judge Stops Murfreesboro Mosque Construction, Holding Inadequate Notice Given For Planning Commission Meeting

A Tennessee Chancery Court judge yesterday issued an opinion that stops, at least temporarily, the ongoing construction of a controversial mosque in Murfreesboro, Tennessee.  In 2011, the court dismissed all the challenges to the Rutherford County Regional Planning Commission's approval of building plans for the mosque, but allowed plaintiffs to move ahead with their claim that the county violated the Open Meetings Act when it publicized the Planning Commission meeting only in the Murfreesboro Post. (See prior posting.) Now in Fisher v. Rutherford County Regional Planning Commission, (TN Chancery, May 29, 2012), the court held that given the importance of the issue to be discussed at the the Planning Commission meeting, the county had given inadequate public notice of it. Reporting on the decision, The Tennessean says that the Commission can still reconsider the issue after proper notice, and again approve the mosque plans. After the state court decision, the Council on American-Islamic Relations called for the U.S. Justice Department to step in. In a press release, CAIR said: "the judge used phrases and reasoning which could be viewed as indicating that a higher degree of public notice is required for issues related to Tennessee Muslims.

UPDATE: CNN Wire reports that the leader of the Murfreesboro Islamic Center says that construction will continue until it receives a formal order to stop.  The judge in his May 29 opinion called for plaintiffs' counsel to prepare an order that the court will then issue.  A draft order was filed on May 30. Defendants will have 5 days to review it, after which the court may sign it.

Israeli Government To Begin Paying Salaries of Non-Orthodox Rabbis

In Israel, the Attorney General's office announced yesterday in an historic move that the government will begin to pay the salaries of some non-Orthodox rabbis, as it now does for Orthodox rabbis. Jerusalem Post reports the move comes in response to a recommendation earlier this month from the country's High Court of Justice. Regional Councils will now be able to pay Masorti and Reform rabbis for any communities who request them. Wages equal to that paid to Orthodox rabbis will be funneled through the Ministry of Sport and Culture, instead of through the Ministry of Religious Services that funds Orthodox rabbis. However, according to Haaretz, the arrangement applies only to regional councils and farming communities, and does not extend to large cities. Also "rabbis of non-Orthodox communities" will not have authority over issues of Jewish law.

First Suit Filed Under Hawaii's 2-Year Window For Child Sex Abuse Claims

In Honolulu last Thursday, the first lawsuit was filed under a Hawaii law that became effective in April (full text) giving a one-time 2-year window for filing of claims of sexual abuse against minors, even though the statute of limitations has otherwise run.  According to AP, the lawsuit was brought on behalf a man claiming sexual abuse by a priest at an all-boys Catholic school's overnight retreat in the 1980s when plaintiff was 13-years old. The suit claims that accused priest Gerald Funcheon was allowed unsupervised access to children at Damien Memorial School even though reports had been made to his order about inappropriate sexual conduct toward minors.

Indian Court Strikes Down Religious Groups' Backward Class Subquota

Last December, the government of India announced the creation of a 4.5% sub-quota for economically and socially disadvantaged non-Hindu minorities-- Muslims, Christians, Sikhs, Buddhists and Zoroastrians-- within the existing 27% Other Backward Classes (OBC) set-asides for government jobs and education. (See prior posting.) Now, according to a report yesterday by the Economic Times, the Andhra Pradesh high court has struck down the sub-quota. It held that a sub-quota cannot be based on purely religious grounds. It said that "Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) do not form a homogeneous group." The sub-quota was widely seen as a political ploy to attract Muslim votes in legislative assembly elections that were upcoming at the time the sub-quota was announced. Indian Express reports that Minority Affairs and Law Minister Salman Khurshid says the court's decision will be appealed.

Recent Prisoner Free Exercise Cases

In Florer v. Bales-Johnson, (9th Cir., May 15, 2012), the U.S. 9th Circuit Court of Appeals dismissed an inmate's free exercise and RLUIPA complaints about his kosher diet, finding that he failed to raise a genuine dispute of material fact that the meals he received substantially burdened his ability to exercise his religion. (See prior related posting.)

In Nzaddi v. Department of Corrections, 2012 U.S. Dist. LEXIS 69510 (D MA, May 18, 2012), a Massachusetts federal district court permitted a Baha'i inmate to proceed against two named defendants on her claim that she was denied kosher meals that were required according to her religious beliefs.

In Bargo v. Kelley, 2012 U.S. Dist. LEXIS 69649 (ED AR, May 18, 2012), an Arkansas federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 69653, May 1, 2012) and denied a preliminary injunction in a case in which an inmate alleged that his free exercise, due process, and equal protection rights were violated when authorities refused to allow him to be interviewed by Indigo Films for a documentary.

In Benning v. Georgia, 2012 U.S. Dist. LEXIS 71813 (MD GA, May 23, 2012), a Georgia federal district court enjoined prison officials from enforcing their grooming policy in a way that completely banned an inmate who professed Orthodox Judaism from growing earlocks. The court held that it is sufficient that the inmate's religious beliefs are sincere. It is irrelevant that he is not Jewish under the criteria set out by Jewish religious law.

Missouri Religion Amendment Moved To August Ballot

The St.Louis Post Dispatch reported last week that Missouri Governor Jay Nixon, a Democrat, has decided that a proposed state constitutional amendment (full text) that guarantees the right to pray and express religious views on public property and in schools will be voted on in the August 7 primary election rather than the November general elections.  The legislative resolution proposing the amendment provided that it should appear on the ballot either in November or in a special election called by the governor.  Apparently the governor's timing was motivated by the likelihood that the amendment will attract social conservatives (mostly Republicans) to the polls, and would thus benefit the Republicans in the general election of it were on the November ballot. Wall of Separation also reports on the governor's move. (See prior related posting.)

Islamists Blame Copts For First Round Election Results In Egypt

AINA reported yesterday that many Egyptians, deeply dissatisfied with the choice for President they have in the upcoming run-off election, are blaming the Christian Copts.  Islamists are blaming the Copts for the fact that Ahmad Shafik, Hosni Mubarak's last Prime Minister, came in high enough to be in the run-off with Muslim Brotherhood candidate Mohamed Morsy. These critics have accused the Copts of being "traitors" and "anti-revolutionary." However, according to AINA, this assessment has been challenged:

Dr Emad Gad, MP and deputy director of Al-Ahram Centre for Strategic Studies, said this campaign against the Copts is a prepared strategy by the Muslim Brotherhood to increase the chances of their candidate in the run-off election, by promoting a lie that votes of the Copts helped Shafik to advance. "This is not true at all. The largest block of votes for Shafik was in the four provinces of the Delta, namely Sharkia, Gharbia, Menoufiah and Dakahila, where the Copts make up only 5% of the total population."

Meanwhile, CNN reports that yesterday several thousand protesters in Tahrir Square urged Egyptian courts to disqualify Shafik. Other protesters broke into Shafik's campaign headquarters and set it on fire. Three of the losing candidates in the first round have filed appeals with the election commission charging fraud. (AP) According to Bloomberg News, many youth groups and secularists who led last year's revolution favor Hamdeen Sabahi, a socialist candidate who came in third in the first round of the election. These activists want Shafik disqualified under a law that took away the political rights of some Mubarak era officials. Others want Morsi to step aside to allow Sabahi to run against Shafik.

Cert. Filed In Suit Over Prisoner's Right To Received NOI Newspaper

The Baton Rouge (LA) Advocate reports that a petition for certiorari has been filed with the U.S. Supreme Court in Leonard v. Louisiana. In the case, the 5th Circuit in a brief per curiam opinion (full text) held that prison officials were not justified in banning a prisoner from receiving Nation of Islam's newspaper The Final Call. Prison officials had imposed the ban because the paper contained "The Muslim Program" written by Elijah Muhammad. The 5th Circuit held: "While we do not agree that "The Muslim Program" is free of racially inflammatory language, the record here does not justify this order under circumstances where an objectionable page could be deleted and where this page has been included in all prior issues of the newspaper and is and always has been available to appellee." (See prior related posting.)

Guidelines on Bullying and Free Expression Released, Create Controversy

As reported by Education Week, last week a coalition of 17 religious, educational and civil rights groups, led by the American Jewish Committee and the First Amendment Center, released new guidelines on bullying in schools. An 11-page pamphlet titled Harassment, Bullying and Free Expression-- Guidelines for Free and Safe Public Schools is "intended to help public schools balance the need for school safety with the need for free expression." The next day, the Anti-Defamation League sent a letter to the Secretary of Education strongly criticizing the new guidelines.  The letter (full text) says in part:

the Guidelines issued this week emphasize students’ First Amendment rights over the responsibility to create a safe learning environment for all students – especially vulnerable minority, disabled, and LGBT students.  While we agree that students’ free speech and religious expression rights are important, we strongly disagree with the Guidelines’ direct implication that such rights have been given short shrift in current federal and state law and policy and need greater protection. 

The American Muslim has extensive background on the Guidelines and the controversy they have generated. [Thanks to Michael Lieberman for the lead.]

Kansas Governor Signs Bill Promoted As Anti-Sharia Measure

AP reports that Kansas governor Sam Brownback on May 21 signed into law H Sub SB 79. The legislation prohibits Kansas courts or tribunals from applying foreign law if that law would not grant the parties affected the same fundamental rights as they would have under the U.S. and Kansas constitutions, including equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage. Supporters of the bill have pressed it as a measure designed to prevent Sharia law from being used by Kansas courts, leading the Council on American Islamic Relations to suggest that the statute may be challenged. (See prior related posting.) The new legislation defines foreign law as:

any law, legal code or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals and applied by that jurisdiction’s courts, administrative bodies or other formal or informal tribunals.

The legislation is based on a model act promoted by the American Public Policy Alliance.

Suit Challenges New Ten Commandments Monument

On Friday, a lawsuit was filed challenging a 5 foot tall stone Ten Commandments monument that was put up earlier this month by the county commission in the courtyard of the Bradford County, Florida Courthouse. The complaint (full text) in American Atheists, Inc. v. Bradford County, Florida, (MD FL, filed 5/25/2012), alleges that the monument, which was unveiled in conjunction with a religious prayer ceremony, violates the Establishment Clause. A press release from American Atheists announced the filing of the lawsuit. [Thanks to Scott Mange for the lead.]

District Court Invalidates DOMA and Related Care Insurance Restrictions

In Dragovich v. U.S. Department of the Treasury, (ND CA, May 24, 2012), a California federal district court held unconstitutional Sec. 3 of the federal Defense of Marriage Act and federal provisions (26 USC Sec. 7702B(f)) that effectively bar states from permitting same-sex domestic partners or same-sex spouses from participating in state-maintained long-term care insurance policies. DOMA was defended by the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) since the administration refused to defend its constitutionality.  In striking down the provisions, the court said in part:

the legislative record contains evidence of anti-gay animus and the BLAG has failed to establish that § 3 of the DOMA is rationally related to a legitimate government interest.  Accordingly, Plaintiff same-sex spouses are entitled to summary judgment that § 3 of the DOMA is invalid under the Constitution’s equal protection principles to the extent that the law blocks their access to the CalPERS long-term care plan....

Because Congress’s restriction on state-maintained long-term care plans lacks any rational relationship to a legitimate government interest, but rather appears to be motivated by antigay animus, the exclusion of registered domestic partners of public employees from § 7702B(f)’s list of individuals eligible to enroll in state-maintained long-term care plans violates the Constitution’s equal protection guarantee.

Metro Weekly reports on the decision.

Document Leaks, Bank President's Ouster Create Crisis Atmosphere At Vatican

Two parallel developments in the Vatican were described yesterday by Reuters as a "widening scandal." Last Thursday the Supervisory Board of the Institute for the Works of Religion (the Vatican Bank) dismissed the president of the bank, Prof. Gotti Tedeschi. (Vatican press release.) Tedeschi says he was ousted because of his attempts to make the bank more transparent. The band has been attempting in recent years to meet international anti-money laundering standards. (See prior posting.) However Vatican officials say the ouster had nothing to do with that. Reuters says that instead it was the result of  "progressively erratic personal behavior" and his failure to defend the bank "in the face of inaccurate media reports".

Meanwhile, on Saturday the Pope's personal butler, Paolo Gabriele, was arrested (Vatican press release) in an ongoing investigation of theft of confidential papers that have been published. They allege cronyism and corruption among the Cardinals. (See prior posting.) AP reports that Gabriele has agreed to cooperate with investigators.

8th Circuit: Freethinkers Have Standing To Challenge 10 Commandments Monument

In Red River Freethinkers v. City of Fargo, (8th Cir., May 25, 2012), the U.S. 8th Circuit Court of Appeals held that a organization dedicated to promoting atheist and agnostic views has standing on behalf of its members to challenge a Ten Commandments monument that has stood for 50 years outdoors on city property in Fargo, North Dakota. City Council had originally decided to move the monument, but reversed its decision after an initiative petition to keep the monument on city property garnered over 5,200 signatures. In reaching its conclusion on standing, the court said:

The injuries to Freethinkers’s members are no doubt actual and imminent.  The City’s display of the Ten Commandments monument has continued now for fifty years, with no end in sight.  Those members have encountered the monument, causing them “to feel isolated and unwelcome in the city.” ... Furthermore, those injuries are personal to Freethinkers’s members.....

The City displays a Ten Commandments monument; it has enacted an ordinance prohibiting the removal of that monument; no other monument is so protected; and the City has a policy of not accepting other monuments in the mall where the Ten Commandments monument stands.... The claimed injury—direct and unwelcome contact with the monument—is “fairly traceable” to the alleged Establishment Clause violation....

The City’s assertion—that there is “no basis in law” for removal of the monument—is wrong.  If the City’s monument violates the Establishment Clause, then a court can order its removal....

By a 2-1 vote, the court remanded the case to the district court for further proceedings. Judge Shepherd, while agreeing that plaintiffs had standing, argued that the case should be dismissed on the merits:

The Commission’s initial decision to move the existing monument from its long-standing site can best be understood as an exercise in pragmatism—one intended to forestall a challenge to its decision not to accept Freethinkers’s offer to erect a “sister” monument.  In light of this background, no reasonable observer would conclude that the Commission’s adoption of the initiated ordinance also adopted and conferred upon the monument the religious views of the ordinance’s proponents.

AP reports on the decision.

Paper Criticizes Candidate Roy Moore's Involvement On Issue That May Come To State Supreme Court

An editorial in the Anniston, Alabama Star yesterday strongly criticized former Alabama Chief Justice Roy Moore, who is again a candidate for that position in the fall election, for becoming involved on one side of an issue that the Alabama Supreme Court may eventually be called to rule upon. The city of Sylvania, Alabama placed a verse from the New Testament-- "One Lord, One Faith, One Baptism"-- on the town's four Welcome sign. In April, the Freedom From Religion Foundation objected (full text of letter) and convinced the town to remove the signs. (FFRF press release.) Earlier this month, however, the town council voted to place the Biblical quotation back on the signs, and the Foundation for Moral Law, headed by former Chief Justice Moore, promised to defend the town's position.  A press release from the Foundation quotes Moore as saying: "The Freedom From Religion Foundation has an agenda to remove any acknowledgement of God or religion from the public square and are trying to bully towns like Sylvania with threatening letters that grossly misrepresent the Constitution." Here is a portion of Anniston Star's editorial on the matter:

One can — and should — question the propriety of an Alabama chief justice GOP nominee heading a foundation dedicated to a constitutional position on which he might one day have to rule. More important, one can — and should — wonder why Moore is personally getting involved in the first place.

Here is a prime example of the sort of controversy on which a chief justice should avoid taking a public stand. If and when matters such as this come before his court, he can then rule on them and explain in legal terms the reasoning behind his decision.

We hoped this was what Roy Moore would do. He has disappointed us again.

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.

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.

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

As previously reported, on Monday 12 new lawsuits were filed around the country by over 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.  Here is the listing of all the plaintiffs in the 12 lawsuits with links to news releases from the lead litigant in each suit, and links to the full text of complaints in 10 of the suits. The Washington Post has a list of all the lawsuits with links to home page of each litigant.

(1) Archdiocese of Washington; Archbishop Carroll High School, Inc.; Catholic Charities of the Archdiocese of Washington, Inc.; The Consortium of Catholic Academies of the Archdiocese of Washington, Inc.; and The Catholic University of America.      (Full text of complaint.)

(2) University of Notre Dame.  (Full text of complaint.)

(3) The Catholic Diocese of Pittsburgh, Catholic Charities of the Diocese of Pittsburgh, Inc. and The Catholic Cemeteries Association of the Diocese of Pittsburgh.

(4) Michigan Catholic Conference; Michigan Catholic Conference Group Health Benefit Plan; Franciscan University. (Full text of complaint.)

(5) Diocese of Erie; St. Martin Center; Prince of Peace Center. (Full text of complaint.)

(6) Archdiocese of New York, Catholic Health Care System, Roman Catholic Diocese of Rockville Center, Catholic Charities of Diocese of Rockville Center, Catholic Health Services of Long Island. (Full text of complaint.)

(7) Catholic Diocese of Springfield, Illinois; Catholic Charities of Diocese of Springfield; Catholic Diocese of Joliet, Illinois; Catholic Charities of Diocese of Joliet. UPDATE: Catholic Charities of Archdiocese of Chicago added July 9. (Full text of complaint.)

(8) Catholic Diocese of Ft. Wayne-South Bend ; Catholic Charities; Saint Anne Home and Retirement Community; Franciscan Alliance; University of Saint Francis; Our Sunday Visitor.  (Full text of complaint.)

(9) Roman Catholic Diocese of Fort Worth. (Full text of complaint.)

(10) Archdiocese of St. Louis; Catholic Charities of St. Louis.  (Full text of complaint.)

(11) Roman Catholic Diocese of Dallas. (Full text of complaint.)

(12) Catholic Diocese of Biloxi; Resurrection Catholic School; Sacred Heart Catholic School; Catholic Social and Community Services; DeL'epee Deaf Center; Catholic Diocese of Jackson; Vicksburg Catholic School; St. Joseph Catholic School; Catholic Charities; St. Dominic-Jackson Memorial Hospital  (Full text of complaint.)

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.....

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.