House Committee Holds Hearings On American Muslim Response To Its Prior Hearings On Domestic Radicalization

Yesterday, the U.S. House Committee on Homeland Security, chaired by Rep. Peter King, held hearings on The American Muslim Response to Hearings on Radicalization within their Community. The committee's website makes available a video of the hearing plus transcripts of all the witnesses' statements. This was the fifth in a series of controversial hearing chaired by Rep. King, and the committee yesterday also released a report (full text) on its findings from the first four hearings. Here is an excerpt from the Executive Summary:

... [T]he Committee held four investigative hearings since 2011 to examine the threat of violent radicalization emanating from within the Muslim-American community, where a small but potentially lethal percentage of that population has plotted severe mass casualty attacks against our homeland.

This is no phantom threat. It shares no equivalency with threats posed by other domestic terrorists who have no foreign ties or any demonstrated capability of organizing themselves for spectacular attacks the homeland.

Only one of the four witnesses appearing before the Committee took serious issue with its findings.  Faiza Patel, Co-Director of the Liberty and National Security Program of the Brennan Center for Justice, said in her testimony:

Terrorism is a serious threat to our country. Our response must be equally serious and must be driven by evidence, not assumptions and stereotypes. But this Committee’s recent hearings on radicalization do not, in my view, rest on a firm factual basis. They proceed from a premise – which is contrary to empirical evidence – that “radicalization” is prevalent among American Muslims and poses an existential threat to our country. Moreover, they adopt a view of “radicalization” that treats religious belief as a precursor to terrorism.

These empirically flawed assumptions, when given the imprimatur of a Congressional hearing, have concrete negative impacts. They undermine our safety by alienating the very communities who have helped law enforcement uncover and foil attempts at terrorism. 

Suit Charges Hebrew National With Misrepresenting Its Level of Kosher Compliance

The Forward yesterday reported on a class action lawsuit that has been filed against ConAgra Foods, the parent company of Hebrew National, claiming that the company has violated various state consumer protection laws by falsely claiming that its products are 100% kosher "as defined by the most stringent Jews who follow Orthodox Jewish law." The 65-page complaint (full text) in Wallace v. ConAgra Foods, Inc., originally filed May 18 in state court, but removed by defendants on June 6 to a Minnesota federal district court, contends that Hebrew National fails in a number of ways to comply with the "most stringent" kosher slaughter practices. Hebrew National's kosher certifying agency, Triangle K, issued a statement (full text) calling the allegations in the complaint  "outrageously false and defamatory." Anticipating one defense, plaintiffs' complaint (Paragraph 8) alleges:

The lawsuit does not seek to have the Court create or define what the applicable standard for kosher meat is....The Court is only asked to hold the Defendant to the standard established by its own representations to the public. Holding the Defendant to its own representations would not create a fusion of government and religious functions and would further not require the Court to place its imprimatur on the religious views of one branch of Judaism to the exclusion of others.

Controversy Continues Over Whether Texas Charter Schools Are Promoting Religion

Yesterday's San Antonio Current has a long article about the Shekinah Learning Institute, an educational organization that has created 13 publicly-funded charter schools across Texas, and particularly in the San Antonio area. Two of the schools in San Antonio, the Shekinah Radiance Academy and the Radiance Academy of Learning, received $15 million in state funds and another $2.3 million in federal funds for the 2009-2010 school year. Together they had some 2,000 students. Americans United for Separation of Church and State claims that the schools improperly promote religion. Several of the schools are located inside active churches, and two of them share the name of their host church. The head of the Shekinah Learning Institute is Cheryl Washington, who has said that God has given her dominion  to grow the Almighty's garden-- an education system-- in San Antonio. The Texas Education Association has apparently opened an investigation into Shekina's finances. The June issue of Americans United's magazine, Church & State, carries an article on the schools titled Showdown At Shekinah, as well as a second article titled Charter for Controversy that explores the issue of promotion of religion by a wide range of publicly-funded charter schools around the country.

Tribunal Says Northern Ireland Sinn Fein Official Discriminated Against Protestant Applicant

The Northern Ireland Fair Employment Tribunal has ruled that the government's Department of Regional Development (DRD) under its former Sinn Fein minister Conor Murphy discriminated on religious grounds against Dr. Alan Lennon, an applicant for the position of chairman of Northern Ireland Water.  According to reports from UTV News and the Irish Times yesterday, the Tribunal concluded that successful candidate Sean Hogan won out over Lennon (and 3 other Protestant candidates) "because [Hogan] was not from a Protestant background and because he was known to the Minister and his ministerial colleagues." The Fair Employment Tribunal also found that during the 2007-2011 period when Conor Murphy was DRD chairman, Catholic applicants were at least twice as likely as Protestant applicants to be appointed to positions. The Tribunal will hold a second hearing later to determine a damage award.  The DRD has 6 weeks to decide whether to appeal the Tribunal's decision.

Argentina Ceremony To Repudiate Anti-Semitic Acts During Falklands War

JTA reports that in Argentina today, political leaders, legislators, foreign diplomats and representatives of various religious groups will participate in a ceremony honoring Jewish soldiers who fought in the Falklands War 30 years ago, and acknowledging the anti-Semitism that they suffered at the hands of their fellow servicemen.  One veteran recounted his experiences:

I was insulted as a Jew. Our superiors told the other soldiers that the Jewish soldiers would betray them in the combat. I was tortured. I was forced to put my hands, legs and sometimes head in cold water in the cold climate of the islands. They told me that this punishment was because I was a Jew.

This is the first event to repudiate the treatment of Jewish soldiers during the Falklands War.

Kosher, Halal Slaughter Will Continue In Netherlands After Compromise; Issue Resurfaces In Poland

As reported by Radio Netherlands Worldwide and JTA, the Dutch Senate on Tuesday voted not to ratify a law that would have banned Jewish and Muslim ritual slaughter. While the bill passed the House of Representatives in Parliament last year by a large majority (see prior posting), 51 out of 75 Senators voted against it after a compromise agreement was reached between the Deputy Minister of Agriculture on the one hand, and Jewish and Muslim groups on the other. The agreement (Radio Netherlands Worldwide and Chabad.org ) allows ritual slaughter without first stunning the animals to continue, but a veterinarian must be present during slaughter, and must anesthetize the animal if it is not unconscious within 40 second after slaughter. The protocol, which also contains other protective measures, will be overseen by a committee of scientists. Animal Rights Party leader Marianne Thieme remains unhappy with the compromise.

Meanwhile, according to Polskie Radio today, in Poland, the country's attorney general, Andrzej Seremet, has submitted an application to Poland's Constitutional Tribunal after a number of non-governmental organizations claimed that the Ministry of Agriculture had "exceeded its legal rights" in creating an exception for ritual slaughter from the requirement that animals be stunned before they are slaughtered. In May, Poland's Agricultural Minister Marek Sawicki rejected demands of animal rights activists to end kosher and halal slaughter in Poland. (See prior posting.)

California Diocese Settles Clergy Sex Abuse Case For $2M

The Orange County Register reports that on Monday, just as jury selection was about to begin in a California state court, the Roman Catholic Diocese of Orange settled a sex-abuse and cover-up lawsuit for $2 million. Also, as part of the settlement, Bishop Tod Brown will send a letter of apology to plaintiff, who is now an Air Force lieutenant colonel who has flown combat missions in many parts of the world.  The suit claims that a once popular and high profile former priest, Michael Harris, abused plaintiff when he was a teenager.  As as principal of Mater Dei high school, Harris called plaintiff into his office to congratulate him and give him a rosary blessed by the pope as a reward for chasing down the perpetrator in a purse snatching he witnessed. During this meeting he sexually assaulted plaintiff.

Summary Judgment Denied In Zoning Dispute Over Use of Rabbi's House for Religious Services

In 554 Queen Anne Road Inc. v. Teaneck Board of Adjustment, (NJ Super. Ct., June 18, 2012), a New Jersey state trial court, finding "voluminous issues of material fact," refused to grant summary judgment to either side in a zoning dispute between an Orthodox Jewish congregation and officials in Teaneck, New Jersey. (See prior posting.) The dispute involves a challenge to the numerous conditions imposed by zoning officials on the use of the  home of the rabbi of the congregation for worship services. The suit contends that the conditions violate RLUIPA as well as various state and federal constitutional provisions. [Thanks to Thomas Rockland for the lead.]

Mass Murder Defendant Excluded From Military Courtroom Because of Beard

Yesterday, according to AP, a military judge at Texas' Fort Hood implemented a warning given earlier this month to accused mass killer Maj. Nidal Hasan (see prior posting), and had him removed from a hearing in his own case to a nearby room where he can watch he proceedings on closed circuit television.  The judge, Colonel Gregory Gross, took the action after Hasan appeared with a beard that Hasan's attorney says the defendant has grown for religious reasons. The beard violates the Army's grooming regulations. Hasan is charged with opening fire after shouting "Allahu Akbar!" in a Fort Hood medical building where deploying and returning soldiers were receiving vaccines and other tests. 

Australia High Court: School Chaplaincy Program Does Not Violate Religious Freedom, But Exceeds Spending Authority

In Williams v. Commonwealth of Australia, (Australia High Ct., June 20, 2912), Australia's highest appeals court held that the country's National School Chaplaincy Program which provides grants for chaplaincy services in public and private schools (see prior posting) does not violate Section 116 of Australia's Constitution. Section 116 prohibits any religious test as a qualification for office.  However the Court invalidated the program on the ground that it exceeds the government's executive powers.  Here is the Sydney Morning Herald's summary of the decision:

[T]he High Court ruled that the case did not impact on the freedom of religion... The constitution says, ''no religious test shall be required as a qualification for any office or public trust under the Commonwealth'' and Mr Williams had argued that the definition of school chaplains included a ''religious test'' for office.

But the court found that school chaplains were not Commonwealth employees, but rather were engaged by an external organisation, Scripture Union Queensland.... 

But by majority the court held that the funding agreement between chaplaincy provider ... and the Commonwealth was invalid because it was beyond the executive power of the Commonwealth.

Because there is no legislation authorising the agreement, the Commonwealth argued the payments were supported by ... section 61 of the constitution, which provides that the executive power ''extends to the execution and maintenance of this constitution, and of the laws of the Commonwealth''. But the majority ... rejected this, finding that section 61 did not empower the Commonwealth to enter into the funding agreement or make the challenged payments.

Suit Challenges County Commission Prayers

A lawsuit was filed in federal district court in Tennessee last week seeking to stop the Hamilton County, Tennessee County Commission's practice of opening its meetings with a Christian prayer.  According to last Saturday's Chattanooga Times Free Press,the suit follows a letter sent in May (full text) from the Freedom From Religion Foundation pointing out that every prayer so far at meetings in 2012 has been offered "in Jesus name." The letter asks that prayers before government meetings be discontinued.

Catholic Health Care Group Opposes Proposed Contraception Mandate Compromise

Last Friday, the Catholic Health Association (CHA), which represents more than 2000 Catholic health care organizations and facilities, submitted a comment letter (full text) to the Department of Health and Human Services taking issue with the Obama administration's proposed compromise to deal with objections of religious organizations to the mandate that health insurance policies cover contraceptive services. CHA's letter has attracted a good deal of press attention (Washington Post; National Catholic Register) because CHA's support was important in the original 2009 passage of the Affordable Care Act (see prior posting) and because CHA president Sister Carol Keehan had initially expressed openness to the compromise on contraception coverage.  CHA now proposes a broad exemption from the contraception coverage mandate for all churches, and organizations associated with churches.  It suggests that if the government insists that employees of such organizations have contraception coverage, it should be paid for by the government and provided "without any direct or indirect involvement of religious employers." [Thanks to Steven H. Sholk for the lead.]

Supreme Court Denies Cert. In Two Church Property Cases

The U.S. Supreme Court today denied certiorari (Order List) in two cases involving property ownership disputes between break-away congregations and their parent church bodies. One was Gauss v. Episcopal Church in the Diocese of Connecticut, (Docket No. 11-1139, cert. denied 6/18/2012), in which the Connecticut Supreme Court had held that the church's "Dennis Canon" establishes an express trust of church property in favor of the Episcopal Church and the Diocese of Connecticut.

In the second case, Timberridge Presbyterian Church v. Presbytery of Greater Atlanta, (Docket No. 11-1101, cert. denied 6/18/2012),the Georgia Supreme Court had held, applying the neutral principles of law doctrine, that the break-away congregation's property was held in trust for the parent church. In a third church property case whose petition for certiorari had been coordinated with Timberridge, the Supreme Court last month dismissed the petition for certiorari upon motion of all the parties. In that case, Rector, Wardens and Vestrymen of Christ Church in Savannah v. Bishop of the Episcopal Diocese of Georgia, (Docket No. 11-1166, dismissed 5/21/2012), the Georgia Supreme Court had also held that the congregation's property belongs to the parent body, the Episcopal Church. (See prior related posting.) [Thanks to Stephen Blakeman for the lead.]

Challenge To Code Enforcement Against Religious Meetings In Home Dismissed On Collateral Estoppel Grounds

In Salman v. City of Phoenix, 2012 U.S. Dist. LEXIS 83305 (D AZ, June 15, 2012), an Arizona federal district court denied a homeowner's request for a temporary restraining order and preliminary injunction to bar enforcement of Phoenix's building, zoning, fire and safety codes against religious meetings in private homes. Plaintiffs claim that such enforcement violates their free exercise rights. Plaintiffs, who are born-again Christians, were holding weekly Bible study sessions in their home. After complaints by neighbors, city officials told plaintiffs that they needed to comply with code requirements for a church. Ultimately plaintiff Michael Salman was convicted in state court of multiple building and zoning code violations and sentenced to 60 days in jail, 3 years' probation, a $12,000 fine and was prohibited from have more than 12 people in his residence at a time. The federal district court dismissed the suit on collateral estoppel grounds, finding that it involves the same issues that were decided by another federal court judge in 2011. (See prior posting.) The court emphasized that under the Rooker-Feldman doctrine federal courts may not be used to obtain de facto review of state court judgments by lower federal courts.  Plaintiffs' arguments were considered in the state criminal trial of Salman.

Bishops Receive 10-Year Progress Report On Clergy Sex Abuse Reforms

The U.S. Conference of Catholic Bishops announced last week that at its Spring meeting which ended Friday, the National Review Board (NRB), a lay group advising it on handling of the sexual abuse of minors by clergy, issued "A Ten Year Progress Report" (full text of June 1, 2012 report). Here are excerpts from the Report:

In 2002, the bishops of the United States approved the Charter for the Protection of Children and Young People. Ten years later, there has been striking improvement in the Church’s response to and treatment of victims..... 

Perhaps the most important advance for the Church in the last decade is the realization by its leaders that cooperation with legal authorities is in the best interest of the Church and the dioceses/eparchies. Dioceses/eparchies are required to report all allegations of sexual abuse of minors to public authorities and to cooperate with all investigations on all matters of sexual abuse. They are also required to advise victims of their right to make a report to public authorities.....

A serious concern of the NRB is complacency or Charter drift – that is, thinking 10 years of action is enough and programs and vigilance can be taken for granted or worse, watered down. While the current trend shows a decrease in clergy sexual abuse, we must never let our guard down. Now is not the time to drift away from the moral requirements of the Charter and the legal requirements of reporting.... 

Recent Articles and Book of Interest

From SSRN:

• Benjamin L. Berger, Polygamy and the Predicament of Contemporary Criminal Law, (in Gillian Calder and Lori Beaman, eds. Polygamy's Wrongs? The Social Family in the Culture of Rights, Forthcoming).
• Ayelet Shachar, Demystifying Culture, (I-CON International Journal of Constitutional Law, 2011).
• Leslie Green, The Nature of Limited Government, (June 11, 2012).
• Ebrahim Moosa, Muslim Ethics and Biotechnology, (January 1, 2012).
• Mark Rahdert, Court Reform and Breathing Space Under the Establishment Clause, (Chicago-Kent Law Review, Vol. 87, No. 3, p. 835, 2012).
• Ebrahim Moosa, Aesthetics and Transcendence in the Arab Uprisings, (August 11, 2011).
• Joy Milligan, Religion and Race: On Duality and Entrenchment, (New York University Law Review, Vol. 87, No. 2, May 2012).
  

From SmartCILP:

• Frederick B. Jonassen, Kiss the Book...You're President...: "So Help Me God" and Kissing the Book in the Presidential Oath of Office, 20 William & Mary Bill of Rights Journal 853-953 (2012).
• Yedidia Z. Stern, Law and the Identity Malaise in Israel. (Reviewing Menachem Mautner, On Law and the Culture of Israel), [Abstract], 60 American Journal of Comparative Law 585-595 (2012).
• William J. Stuntz, Law and Grace, 98 Virginia Law Review 367-384 (2012).
• Ioanna Tourkochoriti, The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the U.S.A., 20 William & Mary Bill of Rights Journal 791-852 (2012).
• Bernie D. Jones, Litigating the Schism and Reforming the Canons: Orthodoxy, Property & the Modern Social Gospel of the Episcopal Church, 42 Golden Gate University Law Review 151-215 (2012).
• Allan W. Vestal, To Soften Their Obdurate Hearts: The Southern Baptist Convention and Marriage Equality, [Abstract], 21 Tulane Journal of Law & Sexuality 49-124 (2012).
• Symposium. Discrimination By and Against Religion and the First Amendment. Articles by Martin E. Marty, Melissa Rogers, Mark E. Chopko, Marissa Parker, Katherine Lewis Parker, Eric Treene, Asma T. Uddin and Dave Pantzer. 10 First Amend. Law Review 201-418 (2012).
• Journal of Law and Religion, Vol. 27, No. 1, 2011-2012 has recently appeared. (Table of Contents).

Recent Book:

• Steven H. Resnicoff, Understanding Jewish Law, (Lexis Nexis, 2012).

Suit Against State Judge For Denying Easter Visit Is Dismissed

In Todd v. Ichikawa, 2012 U.S. Dist. LEXIS 82998 (ED CA, June 13, 2012), a California federal magistrate judge recommended dismissing, on the grounds of absolute judicial immunity from damages, an action claiming that a state court judge violated the free exercise clause in denying a father's application for a child visitation order. Derek Todd was permitted to visit his son only at the discretion of the mother and son. Todd sought a court order allowing him time with his son over Easter. He claimed that his religious practices for Easter consist of attending church, spending time with family, and searching for Easter eggs around the house. State Superior Court Judge Gary Ichikawa denied an ex parte hearing on Todd's application. The federal district court also held that insofar as Todd is seeking prospective inunctive relief, "it would be inappropriate for a federal court to interfere in this family law matter pending in state court."

Recent Prisoner Free Exercise Cases

In Knapp v. Kench, 2012 U.S. Dist. LEXIS 79112 (D NH, June 6, 2012), a New Hampshire federal district court accepted a magistrate's recommendations (2012 U.S. Dist. LEXIS 78981, May 14, 2012) and allowed a Muslim inmate who complained about the lack of Jum'ah services to move ahead with with his 1st Amendment and RLUIPA claims, but dismissed plaintiff's equal protection claim and his official capacity damage claims, while refusing to rule at this stage on whether an individual capacity damage claim lies under RLUIPA.

In Edwards v. Cornelius, 2012 U.S. Dist. LEXIS 79587 (MD FL, June 8, 2012), a Florida federal district court dismissed, with leave to amend as to some defendants, a Rastafarian inmate's claims regarding the vegan diet he received as a pre-trial detainee.

In Vandyke v. S.W.V.R.J., 2012 U.S. Dist. LEXIS 81299 (WD VA, June 12, 2012), a Virginia federal district court dismissed an inmate's 1st Amendment and equal protection challenges to jail officials' refusal to permit him to attend Christian worship services with other inmates while he was being held in protective custody. It also rejected his claim regarding religious materials supposedly taken from his Bible.

In Riley v. Brown, 2012 U.S. Dist. LEXIS 81408 (WD LA, June 12, 2012), a Louisiana federal district court accepted a magistrate's recommendations (2012 U.S. Dist. LEXIS 81409, April 26, 2012) and dismissed claims by a Muslim plaintiff claim that his tights under the 1st Amendment and RLUIPA were violated when the warden refused to permit him to keep a prayer rug he had received by mail.

In three related cases,a Texas federal district court  and dismissed a Muslim inmates complaints against various defendants about interference or denial of prayer services and denial of a special holy day meal. The dismissals were on a number of grounds, including immunity, failure to exhaust, and failure to state a claim on which relief can be granted. The cases are  Lemons v. Texas Department of Criminal Justice ID, 2012 U.S. Dist. LEXIS 82127 (ND TX, June 13, 2012) adopting a magistrate's recommendations (2012 U.S. Dist. LEXIS 81786, May 17, 2012);  Saddler v. Texas Department of Criminal Justice ID, 2012 U.S. Dist. LEXIS 82128 (ND TX, June 13, 2012), adopting a magistrate's recommendations (2012 U.S. Dist. LEXIS 81790, May 17, 2012) and Brown v. Texas Department of Criminal Justice. Department of Criminal Justice ID, 2012 U.S. Dist. LEXIS 82086 (ND TX, June 13, 2012), adopting a magistrate's recommendations (2012 U.S. Dist. LEXIS 81782, May 17, 2012).

In State v. Kennedy, (TN Ct. Crim. App., June 12, 2012), a Tennessee state appeals court upheld the constitutionality of a condition of lifetime community supervision that had been imposed on defendant, a sex offender, even though the condition, among other things, limited his ability to attend church.

In Sims v. Wegman, 2012 U.S. Dist. LEXIS 82813 (ED CA, June 13, 2012), a California federal magistrate judge allowed a Nation of Islam inmate to proceed with his free exercise and RLUIPA claims. Plaintiff contended that he was denied access to a kosher diet, the only religious diet offered that conformed with his religious beliefs.

In Palermo v. Van Wickler, 2012 U.S. Dist. LEXIS 82476 (D NH, June 13, 2012), a New Hampshire federal magistrate judge allowed a pre-trial detainee who is a member of the Asatru religion to proceed with his claims that he has been denied access to a religious diet, group worship with an Asatrú clergyperson, religious items, and religious literature.

Appeals Court Upholds Missouri Ballot Language On Proposed Religious Freedom Amendment

In Coburn v. Mayer, (MO Ct. App., June 13, 2012), a Missouri state appeals court upheld the sufficiency of the ballot language describing a lengthy proposed state constitutional amendment on religious freedom that is slated to appear on the August 7 primary ballot. The ballot language set by the state legislature for the measure is:

Shall the Missouri Constitution be amended to ensure:

• That the right of Missouri citizens to express their religious beliefs shall not be infringed;

• That school children have the right to pray and acknowledge God voluntarily in their schools; and

• That all public schools shall display the Bill of Rights of the United States Constitution.

It is estimated this proposal will result in little or no costs or savings for state and local governmental entities.

Missouri law (Sec. 116.155) requires that the legislature's ballot language be limited to 50 words and "be a true and impartial statement of the purposes of the proposed measure in language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure." The court rejected challengers' arguments that the language promises changes that are not in the measure, and is misleading because it fails to indicate it would reduce prisoners' rights and fails to mention it would allow students to refrain from participating in assignments or educational presentations. (See prior related posting.)

4th Circuit Upholds Sentencing Judge's Comments In Church Robbery Case

In Deyton v. Keller, (4th Cir., June 15, 2012), the U.S. 4th Circuit Court of Appeals denied a habeas corpus petition from 3 robbers who were sentenced to ten consecutive 64 to 86 month terms for their armed robbery of a church during Sunday services.  Petitioners unsuccessfully claimed that the judge's remarks during sentencing impermissibly referenced religious beliefs. The sentencing judge, after referring to victim impact statements, had told defendants:

you didn’t just steal money from people. You took God’s money. You took the Lord’s money and those of us that believe that there is an Almighty and that there is a being that created this world to go in and then steal money that is being tendered by people for the furtherance of an earthly kingdom is just outrageous. . . .

In denying habeas relief, the 4th Circuit said:

The disruption of worship services has an especial effect on the community that it was appropriate for a sentencing judge to take into account.... Indeed the law must protect places that demand special tranquility so that our fellow citizens can exercise their constitutional rights free from fear. Religious services are particularly intimate moments regardless of the faith being observed.... Much as we afford the home a particular sanctity...,  houses of worship must be refuges for those seeking guidance, peace, comfort, and religious fellowship without fear of criminal intimidation. 

Anti-Gay Evangelical Talk-Show Host Profiled

The current issue of the New Yorker carries a long feature article titled Bully Pulpit: An Evangelist Talk-Show Host’s Campaign to Control the Republican Party.  The article profiles Bryan Fischer, the Tupelo, Mississippi based host of the Christian radio show "Focal Point." The program is broadcast on 200 stations of the American Family Association radio network. The article's author Jane Mayer writes of Fischer:

He is one of the country’s most vocal opponents of what he calls “the homosexual-rights movement.” As he puts it, “A rational culture that cares about its people will, in fact, discriminate against adultery, pedophilia, rape, bestiality, and, yes, homosexual behavior.” His goal is to make this view the official stance of the Republican Party.

It was Fischer who began the attacks that led to the resignation in April of openly-gay Richard Grenell as Mitt Romney's national security spokesman.

Fischer is also virulently anti-Muslim, believing that Muslims should be barred from immigrating to the U.S. and serving in the U.S. military. He argues that the U.S. was a Christian nation when the 1st Amendment was drafted, and so non-Christians should have no 1st Amendment free exercise rights.

Study Says Religious Organizations Get $71B In Tax Subsidies and Other Aid

A study published in the June/July issue of Free Inquiry magazine titled How Secular Humanists (and Everyone Else) Subsidize Religion in the United States estimates that federal, state and local governments, through tax deductions, exemptions and direct expenditures, subsidize religion in the United States in an amount equal to at least $71 billion per year. Yesterday's Washington Post reports on the study.

Christian Groups Protest Government's "Two-Class" Concept For Religious Organizations

Baptist Press reports on a June 11 letter to Health and Human Services Secretary Kathleen Sebelius from over 140 leaders of Christian churches, educational institutions and other Christian organizations protesting the "two-class concept of religious organizations" that has been created by attempts to accommodate faith-based objections to the Obama administration's mandate on contraceptive coverage in health insurance policies. (Full text of letter.)  The letter says in part:

[W]e are united in opposition to the creation in federal law of two classes of religious organizations:  churches—considered sufficiently focused inwardly to merit an exemption and thus full protection from the mandate; and faith-based service organizations—outwardly oriented and given a lesser degree of protection.  It is this two-class system that the administration has embedded in federal law via ... rules providing for an exemption from the mandate for a narrowly defined set of “religious employers” and ... a different "accommodation” for non-exempt religious organizations.

And yet both worship-oriented and service-oriented religious organizations are authentically and equally religious organizations.... We deny that it is within the jurisdiction of the federal government to define, in place of religious communities, what constitutes true religion and authentic ministry.... The scheme honors acts of worship while burdening those whose faith leads them to service in our common life.

The letter was organized by the Institutional Religious Freedom Alliance.

Egypt's Top Court Rules Parliament Illegally Elected In Blow To Muslim Brotherhood

In what the New York Times describes as "a frontal legal assault on the Muslim Brotherhood," Egypt's Supreme Constitutional Court today ruled that Egypt's new Parliament was improperly elected and must be dissolved immediately.  As explained by the Times:

The question at issue in the high court’s decision was the application of a rule setting aside two-thirds of the seats in Parliament for selection by a system of party lists, also known as proportional representation. The other third was reserved for individual candidates competing in winner-take-all races.

Other authorities had decided before the parliamentary election that parties could run their members under their banners as candidates for the individual seats as well as the party list seats, but the court ruled Thursday that the parties should not have been allowed to compete for those seats, and so the results were invalid.

The Muslim Brotherhood’s Freedom and Justice Party, as the largest and strongest, stands to lose the most from the ruling. As many as 100 of its 235 seats in the 508-member assembly were elected as individual candidates running under its banner. If it lost all of those seats, the Brotherhood would still control the largest bloc in the chamber, and together with the ultraconservative Salafi parties Islamists would still command a majority. But the Brotherhood’s leadership of the chamber would be much less decisive.

In a second decision, the Court upheld the candidacy of presidential contender Ahmed Shafik, who was Hosni Mubarak's last prime minister. It ruled unconstitutional a law that attempted to prevent former Mubarak government top officials from running for President.  Shafik is in a runoff with Muslim Brotherhood candidate Mohamed Morsi for the presidency.

Israel- Vatican Continue Negotiations On Status and Taxation of Church

Zenit reports that the Bilateral Permanent Working Commission between the Holy See and the State of Israel met in the Vatican on June 12 to discuss an agreement that has been under negotiation for the last 13 years. The agreement relates to the life, activity and tax status of the Catholic Church in Israel, but does not deal with Church properties in Jerusalem or the West Bank. A communique issued after the meeting stated: "The Parties have agreed on future steps and to hold the next plenary meeting on 6 December 2012 at the Israeli Ministry of Foreign Affairs."

Faith Groups Urge Congressional Passage of ENDA

On Tuesday, the U.S. Senate Committee on Health, Education, Labor & Pensions held a hearing on "Equality At Work: The Employment Non-Discrimination Act" (full text of witness statements and video of full hearing). The bill, S. 811, would bar employment discrimination on the basis of sexual orientation or gender identity.  In connection with the hearing, 37 faith groups released a letter they had sent to each member of the Committee urging passage of the bill, saying "we cannot tolerate arbitrary discrimination against millions of Americans just because of who they are." The letter, at the same time, emphasized that

ENDA broadly exempts from its scope any religious organization, thereby ensuring that religious institutions will not be compelled to violate the religious precepts on which they are founded, whether or not we may agree with those precepts. In so doing, ENDA respects the protections for religious institutions afforded by the First Amendment and Title VII of the Civil Rights Act of 1964....

Bishops Plan "Fortnight for Freedom"

Reuters reported yesterday that U.S. Catholic Bishops, at their national convention in Atlanta, have agreed to show a united front through a "Fortnight for Freedom". Some liberal Catholics have been concerned that the bishops' religious liberty campaign, sparked particularly by the Obama administration's mandate requiring contraceptive coverage in health care plans, has taken on too partisan a tone. A website created by the Bishops to make information about the Fortnight for Freedom available, includes the following description:

The fourteen days from June 21—the vigil of the Feasts of St. John Fisher and St. Thomas More—to July 4, Independence Day, are dedicated to this “fortnight for freedom”—a great hymn of prayer for our country. Our liturgical calendar celebrates a series of great martyrs who remained faithful in the face of persecution by political power—St. John Fisher and St. Thomas More, St. John the Baptist, SS. Peter and Paul, and the First Martyrs of the Church of Rome.  Culminating on Independence Day, this special period of prayer, study, catechesis, and public action will emphasize both our Christian and American heritage of liberty. Dioceses and parishes around the country have scheduled special events that support a great national campaign of teaching and witness for religious liberty.

The website also displays a "Prayer for the Protection of Religious Liberty" which reads in part as follows:

... Give us the strength of mind and heart to readily defend our freedoms when they are threatened; give us courage in making our voices heard on behalf of the rights of your Church and the freedom of conscience of all people of faith.

Grant, we pray, O heavenly Father, a clear and united voice to all your sons and daughters gathered in your Church in this decisive hour in the history of our nation, so that, with every trial withstood and every danger overcome— for the sake of our children, our grandchildren, and all who come after us— this great land will always be "one nation, under God, indivisible, with liberty and justice for all."...

EEOC Sues Company For Religious Discrimination In Hiring

The EEOC announced Tuesday that it had filed a lawsuit in federal district court in Oklahoma charging a Nebraska-based lighting products supplier with violating Title VII of the 1964 Civil Rights Act by refusing to hire an applicant at its Tulsa (OK) location because of his religious beliefs.  According to the release:

... Voss Lighting, advertised a vacancy for an “operations supervisor”  position through the website of the First Baptist Church of Broken Arrow, the  church attended by the incumbent manager.  Although he did not himself attend the church,  Edward Wolfe, who had prior management experience, learned about the vacancy  and applied for the position.  The Voss manager  met with Wolfe and recommended him to the branch manager for an interview.  Throughout the application process, both managers  made numerous inquiries, both subtle and overt, into Wolfe’s religious  activities and beliefs.  They asked Wolfe  to identify every church he has attended over the past several years; where and  when he was “saved” and the circumstances that led up to it; and whether he  “would have a problem” coming into work early to attend Bible study before clocking in.

ICANN Releases New gTLD Applications; Some Have Religious Connections [CORRECTED]

Among followers of the Internet, today is known as "New gTLD Reveal Day". In what will be the largest expansion ever of the Internet Domain Name System, the Internet Corporation for Assigned Names and Numbers (ICANN) published a list of who has applied for which new generic Top-Level Domain (gTLD) names. (Press release.) The full list discloses 1,930 applications.  Several organizations have applied for gTLD's that have, or may have, a religious connection or connotation. These faith-related domain names (along with the applicants) are:

• BIBLE (American Bible Society)
• CATHOLIC (Pontifical Council for Social Communication)
• CBN (Christian Broadcasting Network)
• CHRISTMAS (Uniregistry Corp.)
• CHURCH (Life Covenant Church and Holly Fields)
• FAITH (dot Faith Limited)
• HALAL (Asia Green IT System Bilgisayar San. ve Tic. Ltd. Sti.)
• ISLAM (Asia Green IT System Bilgisayar San. ve Tic. Ltd. Sti.)
• ISMAILI (Aga Khan Foundation)
• KOSHER (Kosher Marketing Assets LLC)
• MORMON (IRI Domain Management, LLC)
• YOGA (Victor Falls, LLC; Top Level Domain Holdings Limited; Uniregistry, Corp.)
• كاثوليك (Pontifical Council for Social Communication)
• 天主教 (Pontifical Council for Social Communication)

[CORRECTED-- an earlier version of this posting misread one of the application names. As misread, it could have been seen as controversial or derogatory. As correctly read, it has no connection to a religious topic.]

ICANN's Senior Vice President Kurt Pritz said:

A 60-day comment period begins today, allowing anyone in the world to submit comments on any application, and the evaluation panels will consider them," said Pritz. "If anyone objects to an application and believes they have the grounds to do so, they can file a formal objection to the application. And they will have seven months to do that."

Here it the page from wich public comments may be submitted.  ICANN has also posted instructions for those who wish to file formal objections.

UPDATE: Mashable reports further on religious gTLD applications, pointing out another relevant application as well: LDS (for Latter Day Saints) sought by IRI Domain Management, LLC.

UPDATE2: IMAMAT should also be added to the list of gTLD applications involving religious references. [Thanks to comment from Shahram Soboutipour.]

North Dakota Voters Defeat Religious Freedom Restoration Amendment

Voters in North Dakota yesterday soundly defeated Initiated Constitutional Measure No. 3 that would have placed a broad version of state religious freedom restoration laws in the state's constitution.  With all votes counted, the results were 107,680 (64.04%) No; and 60,465 (35.96%) Yes. (Official results).

The proposed constitutional amendment provided:

Government may not burden a person’s or religious organization’s religious liberty. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government proves it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A burden includes indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.

As reported by the Dickinson (ND) Press, opponents of the measure argued that the amendment was vaguely worded, unnecessary, and might allow freedom of religion to be used as a defense in criminal cases.

Georgia Denies KKK's Application To "Adopt-A-Highway"

The Atlanta Journal Constitution reports that Georgia's Department of Transportation yesterday denied the application of the International Keystone Knights of the Ku Klux Klan to participate in the Department’s Adopt A Highway program. (Full text of DOT statement.) As reported Monday by the Atlanta Journal Constitution, the KKK wanted to adopt a one-mile stretch of highway in the Appalachian Mountains near the North Carolina border. Under the program a group agrees to pick up litter from the road at least 4 times per year, and is recognized by a sign placed  near the area for which the group is responsible.  Opponents say the Klan is trying to use the state program to rebrand its image.  In its statement on the refusal of the application, the DOT said:

Maintaining the safety of our roadways is this Department’s foremost mission.  Encountering signage and members of the KKK along a roadway would create a definite distraction to motorists.  Also, the section of roadway requested is ineligible for adoption due to its posted speed limit exceeding the program maximum of 55 mph.  

Further, promoting an organization with a history of inciting civil disturbance and social unrest would present a grave concern to the Department.

RLUIPA Injunction Claim Survives In Suit Over Building Permit For Private Chapel

In Anselmo v. County of Shasta, California, (ED CA, June 7, 2012), the devout Roman Catholic owner of a ranch and winery challenged the County of Shasta for its refusal to allow him to build a private chapel on his land. The county claimed that the building was inconsistent with the agricultural use zoning on the property, with the Williamson Act contract on it, and claimed that it was subject to the requirements of the Americans With Disabilities Act. A California federal district court permitted plaintiff to proceed with claims for an injunction against enforcement of a portion of the county building code and its zoning laws under the "substantial burden" provisions of the Religious Land Use and Institutionalized Persons Act.  However, it dismissed plaintiff's free exercise and due process claims, his RLUIPA "equal terms" claim, and his RLUIPA claim insofar as it related to county enforcement of the Americans With Disabilities Act against the chapel. The court also found that an individual defendant (a county official) had qualified immunity as to a claim for money damages under RLUIPA's substantial burden provision.

China Publishes Plan To Uphold Religious Freedom and Aid Religious Groups

Xinhua reports today that China's State Council Information Office has published the National Human Rights Action Plan of China (2012-2015).  The Plan, which  deals with a broad range of human rights, proclaims as to freedom of religious belief:

China upholds the principle of freedom of religious belief stipulated in the Constitution and strictly implements the Regulations on Religious Affairs to guarantee citizens' freedom of religious belief.

-- Protecting citizens from being forced to believe in or not to believe in any religion, and from discrimination due to religious belief.

-- Protecting normal religious activities according to law.

The Plan also promises financial support for a number of Buddhist and Islamic religious projects, im;oementing social security for religious staffs and improving the organization and management of services to Hajj pilgrims.  The Plan also calls for promotion of cultural exchanges between Chinese and foreign religious organizations.

Cert. Denied In Case On Student Distribution of Religious Material

The U.S. Supreme Court yesterday denied certiorari in Morgan v. Swanson (Docket No. 11-804) and the cross appeal in the same case, Swanson v. Morgan (Docket No. 11-941). (Order List, 5/11/2012). In the case, in 8 separate opinions, a majority of the U.S. 5th Circuit Court of Appeals, sitting en banc, held (see prior posting) that because the law was not clearly established,  Plano, Texas school principals had qualified immunity in a lawsuit charging them with restricting elementary school students' distribution of religious literature to other students. A separate majority of the court held, however, that the principals' actions were unconstitutional. Education Week reports on the Supreme Court's denial of review, noting that the 5th Circuit's decision applied to only two of several incidents in the schools that were challenged-- one of which involved the attempted distribution of candy cane ink pens with a religious message attached.

State Trial Court Rejects Challenge To Pledge of Allegiance In Schools

In Doe v. Acton-Boxborough Regional School District, (MA Super. Ct., June 5, 2012), a Massachusetts trial court rejected a state constitutional challenge to the recitation of the Pledge of Allegiance, including the phrase "under God", in Massachusetts schools at the beginning of each school day. No student is required to take part in the recitation. Plaintiffs claimed, however, that the phrase "under God" is a "religious truth" that contradicts their own atheist-humanist beliefs, and that daily recitation of the pledge discriminates against them by marginalizing them and classifying them as unpatriotic. The court held that the insertion of the phrase "under God" was a reference to the historical and religious traditions of the United States and did not turn the Pledge into a religious exercise nor violate anti-discrimination requirements. The Becket Fund issued a press release announcing the decision. In a press release yesterday, the American Humanist Association says that plaintiffs will appeal the decision.

Buddhist-Muslim Violence Rages In Myanmar

Reuters reports today on Buddhist-Muslim violence that broke out over the weekend in the state of Rakhine in Myanmar (Burma). At least 8 people have been killed as rival Buddhist and Muslim mobs torch large numbers of houses.  The fighting, which has spread to Sittwe (the capital of the state), reflects decades-long tensions between the majority Buddhist population and the long persecuted Rohingya Muslim minority.  The government regards the 800,000 Rohingya as illegal immigrants from neighboring Bangladesh and refuses to grant them citizenship, while the Rohingya claim they have been in Rakhine for centuries and want full citizenship. As democratic reforms have moved ahead under President Thein Sein, some Burmese in recent days have used their liberalized access to the Internet to express their anti-Rohingya feelings on social media sites (particularly on Twitter). The current violence was apparently triggered by the gang rape and murder of a Buddhist woman a week ago which was blamed on Muslims and killing by a Buddhist mob of 10 Muslims in return. Troops have been sent to the region and curfews are being imposed.

Controversial Pastor Hangs Obama In Effigy To Protest Marriage and Abortion Stances

Terry Jones, pastor of the small Gainesville, Florida Dove Outreach Center, who gained notoriety in 2011 for burning a copy of the Qur'an (see prior posting), has now created another controversy.  As reported last week by the Huffington Post (along with a photo), Jones has hanged President Obama in effigy on the front lawn of his church:

The effigy is suspended from a makeshift gallows with a noose of yellow rope, has a doll in its right hand and a rainbow-colored gay pride flag in its left.

In a telephone interview with The Huffington Post, Jones said the flag was meant to call attention to Obama's stance on same-sex marriage and that the baby doll is there because the president is "favorable toward abortion."...

There is also an Uncle Sam dummy standing at the base of the gallows outside the DWOC. Jones told HuffPost that the Obama effigy had originally been positioned to be hanging Uncle Sam when the display went up two weeks ago, but that the church changed the display on Wednesday.

The words “Obama is Killing America” are printed on a trailer nearby.

The U.S. Secret Service is investigating the situation. [Thanks to Joseph K. Grieboski for the lead.]

Parent Church's Default Judgment Against Break-Away Congregation Upeld On Appeal

In Church of God in Christ, Inc. v. Board of Trustees of Emmanuel Church of God in Christ, (KA Ct. App., June 8, 2012), a Kansas state appellate court affirmed a default judgment and award of damages to an international hierarchical church body in its suit against a break-away local local congregation and some of its members.  Even though the split off of the congregation arose out of a dispute over the authority of the bishop to appoint a pastor for the church, that issue, according to the court, is separate from the property dispute. The court held that while it does not have jurisdiction over  appointment of clergy, it does have jurisdiction to resolve the property dispute.

Recent Articles and Books of Interest

From SSRN:

• Steven H. Resnicoff, Jewish Law and the Tragedy of Sexual Abuse of Children: The Dilemma within the Orthodox Jewish Community, (Rutgers Journal of Law and Religion, Vol. 13, No. 2, 2012).
• Jack L. Sammons, Some Concluding Reflections - Recovering the Political: The Problem with Our Political Conversations, (Mercer Law Review Vol. 63, No. 3, 2012).
• Jeremy J. Patrick, Religion and New Constitutions: Recent Trends of Harmony and Divergence, (June 5, 2012).
• Zachary R. Calo, Faithful Presence and Theological Jurisprudence: A Response to James Davison Hunter, (Pepperdine Law Review, Vol. 39, p. 1001, 2012).

The June issue of Church & State has recently appeared online.

Recent Books:

• Michael I. Meyerson, Endowed by Our Creator: The Birth of Religious Freedom in America, (Yale Univ. Press, May 2012).
• Melanie Heath, One Marriage Under God: The Campaign to Promote Marriage in America, (NYU Press, April 2012).
• Caitlin Carenen, The Fervent Embrace: Liberal Protestants, Evangelicals, and Israel, (NYU Press, March 2012).
• Laurent Gayer and Christophe Jaffrelot (eds.), Muslims in Indian Cities: Trajectories of Marginalisation, (Columbia Univ. Press, May 2012).
• Wolfgang P. Muller, The Criminalization of Abortion in the West: Its Origins in Medieval Law, (Cornell Univ. Press, June 2012).

Recent Prisoner Free Exercise Cases

In Nance v. Miser, 2012 U.S. Dist. LEXIS 75307 (D AZ, May 30, 2012), an Arizona federal district court permitted a Muslim inmate to proceed against the prison's deputy director and its chaplain on his free exercise and equal protection challenges to the refusal to provide him with a Halal diet.

In Patterson v. Ryan, 2012 U.S. Dist. LEXIS 75289 (D AZ, May 30, 2012), an Arizona federal district court, in a suit by a Messianic Jew, rejected plaintiff's complaint that his request for kosher meals was fulfilled by serving him vegetarian meals for breakfast and lunch, and kosher meals for dinner. Only Orthodox Jews received 3 kosher meals. Plaintiff failed to show any burden on his religious practice.

In Muhammad v. Martel, 2012 U.S. Dist. LEXIS 76445 (ND CA, June 1, 2012), a California federal district court denied an inmate's habeas corpus petition, holding in part that derogatory references to petitioner's religion by the victim at his trial for stalking, and in the pre-sentence report, did not violate his free exercise rights.

In Erickson v. Lopez, 2012 U.S. Dist. LEXIS 76548 (WD WA, June 1, 2012), a Washington federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 76552, April 27, 2012) and dismissed a Muslim inmate's free exercise claim growing out of the prison's assignment of him to a cell with a Wiccan inmate who assaulted him after authorities refused to transfer him to a different cell. The court held that placing inmates of different religions together does not necessarily substantially burden either's free exercise.

In Foster v. Bhambi, 2012 U.S. Dist. LEXIS 77188 (ED CA, June 4, 2012), a California federal magistrate judge rejected a state prisoner's claim that his free exercise rights were violated when prison officials allowed coronary bypass surgery, which he had previously refused, to be performed on him.

In Glenn v. New Hampshire State Prison Family Connections Center, 2012 U.S. Dist. LEXIS 78689 (D NH, June 4, 2012), a New Hampshire federal magistrate judge permitted a Muslim inmate to proceed with free exercise, RLUIPA, establishment clause and equal protection challenges. He complained that there had been no Muslim Jum'ah services for three years. Authorities said there were no approved volunteers to conduct them; but there were state-paid Christian chaplains.  Plaintiff also complained that he had no Qur'an or other Muslim literature, that the prison had not accommodated his need for a Muslim diet, shaving practices, or prayer requirements and had not provided him with food for a Ramadan feast.

In Jordan v. Fuller, 2012 U.S. Dist. LEXIS 78338 (D CO, June 5, 2012), a Colorado federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 78378, Jan. 17, 2012) and dismissed the claim of an inmate who does not practice any particular religion that his free exercise, equal protection, 8th Amendment and due process rights were infringed when he was not permitted a vegetarian diet.

In Johnson v. Carroll, 2012 U.S. Dist. LEXIS 79380 (ED CA, June 6, 2012), a California federal magistrate judge refused to dismiss a Muslim inmate's free exercise and equal protection claims growing out of the confiscation of his religious diet card when he was transferred to a different prison.

Muslim Can Move Ahead With Challenge To Ban On Kufi In Juvenile Court

In Al-Qadir v. Wackenhut Corp., 2012 U.S. Dist. LEXIS 75304 (MD TN, May 31, 2012), a Tennessee federal magistrate judge recommended against dismissing a free exercise claim by a Muslim who contended that a Wackenhut security guard denied him entry to, and subsequently removed him from, the Juvenile Court building in Nashville, Tennessee because he was wearing a Kufi. Plaintiff agreed to remove the kufi to be searched, but insisted on then wearing it again. Apparently the publicity caused by the filing of this case has caused the Juvenile Court to modify its policy for the future.

Religious Beards Continue To Violate Military and Police Grooming Standards

The clash between beards grown for religious purposes and grooming standards continues to make the news.  McClatchy Newspapers reported Friday that at Texas' Fort Hood, a military judge delayed the pre-trial hearing for accused mass killer Maj. Nidal Hasan because Hasan appeared in court with a full beard, grown for religious reasons. The beard violates the Army's grooming regulations, and Col. Gregory Gross said it was a disruption to court proceedings.  When the hearing resumes, possibly this week, Hasan will be required to watch it on closed-circuit television outside the courtroom if he does not comply with an order to "appear with proper military grooming standards."

Meanwhile, in New York City, a Hasidic Jewish Police Academy recruit was dismissed last Friday  for refusing to keep his beard, grown for religious purposes, trimmed to the 1 millimeter length permitted by police grooming rules. Fishel Litzman was only a month away from graduation, according to AP and the New York Daily News. [Thanks to Rabbi Michael Simon for this lead.]

Denmark Approves Full Wedding Ceremonies For Same-Sex Couples

AP and RT report that on Thursday, Denmark's parliament, by a vote of 85-24, approved a change to the country's marriage law that permits same-sex couples to be married in formal church weddings by the Church of Denmark. According to the Copenhagen Post, bishops will quickly develop a separate ceremony for such marriages. The change becomes effective June 15.  Previously, under a 1997 law, the state's Lutheran Church could only marry same-sex couples in a special short blessing ceremony at the end of a regular church service. Under the new law, any minister can refuse to conduct a same-sex ceremony, but the local bishop is then required to arrange for a replacement to do so. Also the new legislation automatically recognizes the 4,100 couples in registered civil partnerships as married.

State Department's New Format For Human Rights Report Triggers Partisan Debate On Religious Liberty

On May 24, the State Department released the 2011 Country Reports on Human Rights Practices in a new streamlined format that includes a country-specific executive summary and examples of the significant human rights problems reported in each country.  The report can be accessed for each country, or a customized report across any number of countries by human rights topic can be created online. A report by CNS News this week illustrates, however, that the new format has become part of the partisan battle over the Obama administration's commitment to religious liberty. In the new format, for each country under the section on "Respect for Civil Liberties," the subtopic of "Freedom of Religion" reads:  See the Department of State’s International Religious Freedom Report at http://www.state.gov/j/drl/irf/rpt/"  According to CNS, some are claiming that this move is part of an effort by the Obama administration to downplay international religious freedom, and particularly to hide violence directed at Christians and other minorities in Muslim nations in Africa and the Middle East since the Arab Spring uprisings of 2011.  The cross-referenced State Department religious freedom report only covers the period through December 2010.

Vouchers Are Benefiting Catholic Schools

In a long front-page article in today's weekend edition, the Wall Street Journal reports that Catholic parochial schools are making a come back, and "are benefiting disproportionately from the rise of vouchers, available in 10 states and Washington, D.C.," as well as from and tax credit programs. According to the report, vouchers benefit Catholic schools more that higher-priced private schools because Catholic schools are often in urban areas, they have space, and they have an established history in the community. When Indiana began a voucher program last year, over 2,400 students transferred from public to Catholic schools, and another 1,500 moved to other religious or private schools.

House Hearing Held On Bill Clarifying VA's Role In Veterans' Funeral Ceremonies

On June 6, a subcommittee of the House Committee on Veterans' Affairs held hearings on a series of bills, one of which was HR 2720 (full text) which is designed to clarify the VA's role in military funerals.  Witnesses on Panel 3 and the submission of Rep. Poe at the hearing focus on this bill, which was prompted by a dispute last year over rules at the National Cemetery in Houston, including allegations that the Department of Veterans Affairs restricted religious content at ceremonies. (See prior posting.) The government claimed that the VA was merely attempting to honor the wishes of families. (See prior posting.) The bill would require the VA to make certain that a chapel displaying religious symbols chosen by the family is available at national cemeteries, and that access to the cemetery is provided to honor guards when requested by the family.  It also provides:

The Congress reaffirms the inviolable individual zone of privacy that each American possesses, including the deeply private act of choosing the content and creed of an individual's funeral, memorial service, or ceremony... [N]o official of the Federal Government, including the Secretary of Veterans Affairs, may interfere with the content and creed of the funeral, memorial service, or ceremony of a deceased individual, as expressed by the last will and testament of the individual or as determined by the family or agent of the individual....

The Washington Post reports on some of the questions raised by lawmakers during the hearing. [Thanks to Don Byrd for the lead.] 

Lawsuit Against USCIRF Claims Anti-Muslim Bias

On Thursday, a lawsuit was filed in federal district court in Washington, DC against the U.S. Commission on International Religious Freedom by a lawyer and expert on South Asian affairs, Safiya Ghori-Ahmad, who alleges that a permanent job offer with the Commission that she accepted was withdrawn because of anti-Muslim bias of two of the USCIRF commissioners. The complaint (full text) in Ghori-Ahmad v. United States Commission on International Religious Freedom, (D DC, filed 6/7/2012), recounts that plaintiff, formerly employed by the Muslim Public Affairs Council, was hired as an analyst by USCIRF’s executive director after staff interviews and review of her qualifications. However, after she left her prior job and before she began with USCIRF, the Commission, particularly at the urging of then-Commissioner Nina Shea, reneged on its hiring decision and instead offered her only a temporary 90-day position. According to the complaint:

Internal USCIRF email and discussions make clear that Ms. Ghori-Ahmad’s national origin and religion drove USCIRF’s ultimate decision to rescind its job offer. For example, Commissioner Shea, a particularly influential voice with long tenure on the Commission, wrote that hiring a Muslim like Ms. Ghori-Ahmad to analyze religious freedom in Pakistan would be like “hiring an IRA activist to research the UK twenty years ago.”

USCIRF allegedly retaliated further against Ghori-Ahmad when she filed a complaint about her treatment with the EEOC. The lawsuit claims that USCIRF's discrimination against plaintiff violates the Congressional Accountablity Act which was made applicable to USCIRF by the legislation passed last year that reauthorized the Commission.The Washington Post, reporting on the lawsuit, adds:

The allegations in the suit are the most explicit in a years-long series of allegations that commission leaders are biased against Muslims, specifically people associated with groups critical of U.S. foreign policy and who work for groups that fight anti-Muslim discrimination.

[Thanks to all who sent me leads on this.]

Kuwait's Emir Vetoes Increased Blasphemy Penalties, But Override Possible

RTT News reports that on Wednesday, Kuwait's Emir, Sabah Al-Ahmad Al-Jaber Al-Sabah, rejected legislation that had been passed by the National Assembly (Parliament) last month increasing the penalties for blasphemy. The Emir sent the bill back for reconsideration. Upon reconsideration, a 2/3 vote by the National Assembly requires the Emir to promulgate the law (Kuwait Constitution Art. 66) -- a result that seem likely since the bill originally passed by a vote of 40-6. (See prior posting.) The law would amend Article 111 of the Kuwait Penal Code to provide that any Muslim who mocks God, his prophets, messengers, Prophet Mohammad’s wives or the Qur'an may be subject to the death penalty or life in prison unless the defendant repents. If he does, then the judge is to instead impose a sentence of at least 5 years in prison and a fine equivalent to $36,000 (US). Lower penalties are provided for non-Muslim offenders. (See prior posting.) Currently, Section 111 provides only a one-year penalty for defamation of religion. (Background.)

9th Circuit Affirms Dismissal of Establishment Clause Challenge To Waldorf Schools

In a 3-page opinion in PLANS, Inc. v. Sacramento City Unified School District, (9th Cir., June 7, 2012), the U.S. 9th Circuit Court of Appeals affirmed a federal district court's dismissal of an Establishment Clause challenge to two Northern California school districts that have created "Waldorf" schools. These schools use a holistic teaching method based on the educational philosophy of Rudolf Steiner, creator of the spiritually-based philosophy known as Anthroposophy. (See prior posting.) The 9th Circuit held that:

PLANS failed to meet its burden of showing that anthroposophy is a religion for purposes of the Establishment Clause. Although we express no view as to whether anthroposophy could be considered a religion on the basis of a fuller or more complete record, the record as it is before us is simply too thin to sustain that conclusion.

The court also held that PLANS had waived any argument that it could prevail on its Establishment Clause claim even without a determination that anthroposophy is a religion. The case has been winding its way through the courts since 1998.

USCIRF Elects Chair, Vice-Chairs

The U.S. Commission on International Religious Freedom announced yesterday that Dr. Katrina Lantos Swett has been elected Chair of USCIRF.  Rev. William J. Shaw and Mary Ann Glendon were elected Vice-Chairs. Section 201(d) of the International Religious Freedom Act mandates election of a chair by a majority of the USCIRF members present and voting at the first meeting after May 30 each year.

CDC Issues Report On Risky Ultra-Orthodox Jewish Circumcision Procedure

Time Magazine reports that the U.S. Centers for Disease Control and Prevention (CDC) released a report yesterday on Neonatal Herpes Simplex Virus Infection Following Jewish Ritual Circumcisions that Included Direct Orogenital Suction — New York City, 2000–2011. The report finds that during the 12 year period covered 11 newborn males contracted HSV infection from the ultra-Orthodox Jewish practice of  metzitzah b'peh in which the mohel places his mouth directly on the newly circumcised penis and sucks blood away from the circumcision wound. This circumcision method increases the risk for neonatal herpes 3.4 times that of male infants who have not had direct orogenital suction. On Wednesday, the New York City Health Department issued a statement (full text) strongly advising against the practice of metzitzah b’peh.  It also announced that 9 New York hospitals have agreed to distribute a Health Department pamphlet, Before the Bris: How to Protect Your Baby Against Infection, to parents considering out-of-hospital circumcision of their newborn boys. The New York Health Department's warnings echo those it issued as early as 2005. (See prior posting.) [Thanks to Vos iz Neias? for the lead.]

Egypt's Constitution Drafting Panel To Be Split Between Islamists and Non-Islamists

In Egypt, the Supreme Council of the Armed Forces has invited both chambers of parliament to meet next Tuesday to select the 100 members of the panel that is to draft the country's new constitution.  According to the Financial Times, this move came after agreement was reached on Thursday between the army and representatives of Islamist, liberal and leftwing parties in parliament on the makeup of the new drafting commission. Its membership will be split evenly between Islamists and non-Islamists, and will include members of parliament, judges, young people, women, public figures, Muslim clerics and church representatives.

Sikh Employee Wins Settlement With TSA

The Washington Post reported Wednesday that a Sikh man has won a $30,000 settlement in an employment discrimination claim against the Transportation Security Administration.  Kulwinder Singh, a TSA employee at New York's Kennedy Airport, was told by his TSA supervisor that he had to hide his kara (religious wristband) under a long sleeve shirt, or not wear it at all. In a decision last March, the EEOC ruled that the TSA needed to permit employees to wear the kara freely. Singh's attorney says that hiding the kara from sight defeats its purpose of reminding its wearer to act righteously and protect others.

Note to Readers: Comment Feature To Be Reactivated On Religion Clause Blog

A Note to Religion Clause Readers--

Beginning today, I am experimenting again with activating the Comment feature on Religion Clause blog.  Readers, after registering, will be able to post Comments relating to this and future items.  I deactivated the Comment feature in February 2010 after the Comment forum stopped serving a useful purpose. You can see my concerns that led to the decision at that time here.  Some readers were using it more to proselytize than to comment on the postings, and the number of readers submitting posts was small. I hope that its use will prove more effective this time.  However if it does not, I will again deactivate it.

Comments will not be moderated before they appear.  I do not have the time necessary to carry out that labor intensive function.  However, I reserve the right to remove any Comment that I find inappropriate for any reason.  Needless to say, though, my failure to remove a comment in no way indicates that I endorse it or find it appropriate.  Religion Clause has a knowledgeable and articulate readership. I hope the Comments will reflect this, and will respect the overall tone and goal of the blog. I also reserve the right to remove excessive numbers of postings by any individual reader, even if their content is appropriate.

The Comments will be accessible in a pop-up window so that they will not distract readers who are interested only in the main postings. I welcome Comments suggesting anything else that would make the Comment forum of more interest to you.  As always, feel free to contact me by e-mail where that is more appropriate. Thanks again to all the loyal Religion Clause readers.  I hope you find this step an improvement in the blog.

Best wishes,
Howard Friedman

Another Court Says DOMA Is Unconstitutional

Another court has held that the Defense of Marriage Act is unconstitutional.  In Windsor v. United States, (SD NY,June 6, 2012), a New York federal district court awarded plaintiff Edith Windsor damages equal to the $353,000 in estate taxes paid to the federal government on her same-sex spouse's estate. Edith and her long-time partner Thea Spyer, who were New York residents, were married legally in Canada in 2007. Spyer by will left her estate for the benefit of Windsor, but because of DOMA Spyer did not qualify for the unlimited estate tax marital deduction. Without invoking strict scrutiny, the court held that Section 3 of DOMA violates the equal protection component of the 5th Amendment because the government's asserted interests are inadequate to support the law. Jurist reports that this is the fourth federal court decision invalidating DOMA. (See prior related posting.)

Former Cadet May Challenge Required Prayer At Honor Code Hearing

In Spadone v. McHugh, (D DC, June 6, 2012), the U.S. District Court for the District of Columbia held that former West Point cadet Alan Spandone has standing to claim that the Establishment Clause was violated when, at a hearing on his alleged Honor Code violations, he was ordered by the Commandant of Cadets to stand with his body rigid in a military posture and to read aloud the "Cadet’s Prayer."  The hearing involved charges of plagiarism, and the Commandant thought that Spandone had not shown contrition or accepted responsibility for his conduct. The Army argued to the court that reinstating Spandone would not cure the Establishment Clause violation.  The court held, however, that the likely remedy would be an injunction banning forced religious prayer. The court however rejected due process and other challenges by Spandone to his removal from West Point.

9th Circuit Upholds Hawaii Licensing Requirement For Commercial Beach Weddings

In Kaahumanu v. State of Hawaii, (9th Cir., June 6, 2012), the U.S. 9th Circuit Court of Appeal for the most part upheld against 1st and 14th Amendment challenges Hawaii's regulation and associated guidelines that require permits for "commercial weddings" on public beaches.  The permit requirement applies to any wedding involving receipt of compensation for goods or services, other than service of a photographer, even if the only compensation is that paid to a member of the clergy for performing the ceremony. The court held that the state regulation "is is narrowly tailored to a significant governmental interest, is content-neutral, leaves ample alternative spaces for hosting a wedding, and does not vest too much discretion in the government official when issuing the permits." The court however struck down a provision in the regulation giving the Department of Land and Natural Resources authority to revoke or add terms and conditions to an already issued permit for any reason.  The court rejected a contention by plaintiffs that the regulation's prohibition on placing various types of wedding accessories on the beach creates a preference for nonliturgical religions and targets members of the Catholic, Orthodox or Jewish faiths. The court interpreted the regulation as permitting hand-held accessories including religious objects such as hand-held chuppas, chalices, and small, handheld kahilis.

Suit Challenges NYPD Surveillance of Muslim Communities

Yesterday, a group of Muslim organizations, Muslim-owned businesses and individuals filed suit in federal district court in New Jersey to challenge the New York Police Department's program of secretly infiltrating and monitoring Muslim religious institutions, schools, businesses, associations, and congregations around New York City. The complaint (full text) in Hassan v. City of New York, (D NJ, filed 6/6/2012), charges that the NYPD program impermissibly discriminates against plaintiffs because of their religion and intentionally denigrates Islam:

The NYPD Program is founded upon a false and constitutionally impermissible premise: that Muslim religious identity is a legitimate criterion for selection of law-enforcement surveillance targets, or that it is a permissible proxy for criminality, and that the Muslim community can therefore be subject to pervasive surveillance not visited upon any other religious group or the public at large.

The lawsuit seeks a declaratory judgment, an injunction against continuation of the program and asks that all records of plaintiffs made through unlawful spying be expunged. It also asks for nominal damages and attorneys' fees. Muslim Advocates issued a press release announcing the filing of the lawsuit.  The Wall Street Journal reports on the lawsuit.

UPDATE: An amended complaint was filed on Oct. 3, 2012. Center for Constitutional Rights has links to subsequent pleadings in the case.

Suit Claims Anti-Gay Discrimination By Doctor On Religious Grounds

In New Jersey, an HIV-positive gay man has filed suit against a hospital under the state's Law Against Discrimination charging that his treatment was delayed and he suffered embarrassment and humiliation as a result of discrimination against him on the basis of his sexual orientation and/or his HIV-positive status. The state-court complaint (full text) in Simoes v. Trinitas Regional Medical Center, (NJ Super., filed 5/23/2012) alleges that shortly after plaintiff was admitted to the hospital's mental health wing, he was approached by Dr. Susan Borga, who walked out on him after she learned that he contracted HIV from unprotected sex with men. The complaint alleges the Dr. Borga hung up the phone on plaintiff's HIV doctor, telling him: "This is what he gets for going against God's will."  The complaint faults the hospital for failing to promulgate or enforce an anti-discrimination policy. Courthouse News Service reports on the case. [Thanks to Scott Mange for the lead.]