Vatican's Battle With China Over Unapproved Ordinations Continues

The Vatican yesterday issued a communique (full text) stating that Rev. Joseph Yue Fusheng, who was ordained in China's Heilongjiang Province on July 6 as a bishop, without Vatican approval, has automatically incurred the sanction of excommunication as provided by Code of Canon Law, Canon 1382. It says he now lacks the authority to govern the priests and the Catholic community in the Province. The statement went on: "The Bishops who took part in the illicit episcopal ordination and have exposed themselves to the sanctions laid down by the law of the Church, must give an account to the Holy See of their participation in that religious ceremony."  Catholic World News, reporting on these developments, notes that the Vatican statement also applauded the July 6 ordination of Bishop Thaddeus Ma Daqin as an auxiliary of the Shanghai diocese with the approval of both the Vatican and the Chinese government.  However apparently Bishop Ma has now been taken into custody by Chinese officials after he announced during his ordination ceremony that he was quitting the government-backed Patriotic Association. [Thanks to Alliance Alert for the lead.]

Religious Rights Organization Changes Its Name

The group Alliance Defense Fund, an important litigant in religious liberty cases, announced yesterday that it is changing its name to "Alliance Defending Freedom," with a tag line "For Faith. For Justice." The change was explained as one intended to help people more easily understand the group's work and why it matters. An FAQ page describes ADF as: "an alliance-building legal ministry encouraging Christians to come together to ... protect and defend the religious freedom that was bestowed upon us by God and secured in the U.S. Constitution."

Amended Complaint OK'd In Establishment Clause Challenge To Funding of Children's Home

In the long running litigation in Pedreira v. Kentucky Baptist Homes for Children, 2012 U.S. Dist. LEXIS 93754 (WD KY, July 6, 2012), a Kentucky federal district court has overruled objections by Kentucky Baptist Home for Children (KBHC) and permitted plaintiffs to file a second amended complaint as state taxpayers challenging on Establishment Clause grounds the payment of state funds to KBHC for the care of children. The court held that the allegations in the amended complaint that the hiring practices and employment policy of KBHC are "evidence of" an Establishment Clause violation are permissible even though the district and appeals court previously held that the firing of plaintiff because she is a lesbian was not itself an Establishment Clause violation.

Ohio High Court To Review Science Teacher's Firing

As reported by the Columbus Dispatch, the Ohio Supreme Court last week agreed to hear an appeal in Freshwater v. Mount Vernon City School District Board of Education. (Links to court filings and grant of review.) In the case, a state appeals court upheld the firing of John Freshwater, a middle school school science teacher. The school board based the firing on Freshwater's injecting his religious views, including belief in Creationism, into the classroom and for insubordination in failing to remove certain religious materials from the classroom after being ordered to do so by the school board. (See prior related posting.) The Court granted review on two issues: (1) whether Freshwater could be fired if the school board has not provided a clear indication of the kinds of materials or teaching methods that are unacceptable; and (2) whether the mere presence of religious texts from the school's library and/or the display of a patriotic poster can justify his firing. [Thanks to Don Byrd for the lead.]

Is A Homeless Shelter A "Church" In Zoning Code?

In Lexington, Kentucky on Friday, a lawsuit was filed in state circuit court by Emmanuel Apostolic Church and the Catholic Action Center challenging the city Board of Adjustment's vote last month to revoke their conditional use permit under which they are operating the Community Inn as a homeless shelter. The city wants to move the shelter after reports of loitering, panhandling and residents urinating in public. As reported by the Lexington Herald-Leader, under the Lexington Fayette County Urban Zoning Ordinance, Art. 8, "churches" may be granted a conditional use permit to use property in areas zoned B-4 (wholesale and warehouse use). The city said that during the permitting process they assumed that the building would be used as a traditional church. Only days before it opened did neighbors realize that the Community Inn would house up to 75 homeless men overnight. The shelter also provides several Bible courses during the week and traditional religious services on Saturday mornings. The lawsuit raises the question of the proper definition of "church" under the city's zoning laws. One of the pastors involved argues: "Wherever the will of the Lord is being done, that's a church."

New York AG Settles With Municipal Hospitals On Religious Accommodation

The New York Attorney General's office announced Friday that it had reached a settlement on religious accommodation with the New York City Health and Hospitals Corporation-- the largest municipal health care organization in the country. The settlement institutes best practices at HHC's facilities, including Jacobi Medical Center, to make certain that employee accommodation requests are handled in accordance with state and federal anti-discrimination laws. As reported by the blog Vos Iz Neias?, the Attorney General's investigation of the matter stems from complaints by Orthodox Jewish and Seventh Day Adventist nurses at Bronx's Jacobi Medical Center who claimed they were not being allowed to modify their work schedules so they could observe their Sabbath. [Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Tamar Hostovsky Brandes, Separate and Different: Single-Sex Education and the Quest for Equality, (Israel Law Review 45(2) 2012, pp. 235-266).
• Mark L. Movsesian, Crosses and Culture: State-Sponsored Religious Displays in the U.S. and Europe, (Oxford Journal of Law and Religion, 2012).
• Kathryn E. Kovacs, Alleviating the Tension between Species Preservation and Religious Freedom, (July 2, 2012).
• Myles Frederick McLellan, Jehovah's Witnesses and Child Protection Legislation: The Right to Refuse Medical Consent, (July 4, 2012).
• Andrew F, March and Naz K. Modirzadeh, Ambivalent Universalism? Jus ad bellum in Modern Islamic Legal Discourse, (European Journal of International Law, Forthcoming).
• Ryan C. Tuck, Parting the Red Sea: The Religious Case for LGBT Equality, (July 6, 2012).
• Brian Leiter, Waldron on the Regulation of Hate Speech, (Notre Dame Philosophical Reviews, 2012 Forthcoming).
• Mohamed Ariff, Meysam Safari and Shamsher Mohamad, Sukuk Securities, Their Definitions, Classification and Pricing Issues, (in M. Ariff, M. Iqbal & S. Mohamed (Eds.), The Islamic Debt Market for Sukuk Securities: The Theory and Practice of Profit Sharing Investment (pp. 11-41), Cheltenham). 

From SmartCILP and elsewhere:

• Conference: The Theology of Work and the Dignity of Workers, 50 Journal of Catholic Legal Studies 1-316 (2011).
• R. Glei and S. Reichmuth, Religion Between Last Judgement, Law and Faith: Koranic Dīn and Its Rendering in Latin Translations of the Koran, [Abstract], (Religion 42, No. 2, 2012, 247-271).

Recent Prisoner Free Exercise Cases

In Baker v. Buckner, 2012 U.S. Dist. LEXIS 90443 (D CO, June 29, 2012), a Colorado federal district court adopted a magistrate's recommendations (2012 U.D. Dist. LEXIS 90502, May 15, 2012) and dismissed with leave to amend a Muslim inmate's claim that his free exercise rights were violated when his religious pictures, Bible, Qur'an, prayer rug, and other books were confiscated. His due process claims as to the confiscation were dismissed with prejudice.

In Johnson v. Heyns, 2012 U.S. Dist. LEXIS 90968 (WD MI, July 2, 2012), a Michigan federal district court dismissed claims against some defendants, but permitted an inmate to proceed against others, in his claim that his free exercise rights were infringed when documents containing prayers, myths and depictions of his Mexica-Aztec religion were confiscated and when he and others were no longer be permitted to conduct their prayer circle using the Nahuatl language.

In Young v. Hooks, 2012 U.S. Dist. LEXIS 91740 (SD GA, July 2, 2012), a Georgia federal district court adopted a magistrate's recommendation and allowed an inmate to proceed against the warden (but dismissed the Attorney General as a defendant) in a claim that plaintiff was not allowed to have certain sacred items that are necessary to perform rituals and ceremonies.

In Wallace v. Miller, 2012 U.S. Dist. LEXIS 91295 (SD IL, March 5, 2012), an Illinois federal magistrate judge recommended allowing an inmate to proceed on RLUIPA and free exercise claims against a Department of Corrections contract Rabbi. Plaintiff alleged that he had converted to an orthodox form of Judaism, but was unsuccessful in obtaining religious items, dietary services, opportunities to fast, worship, observe religious holidays, and receive religious instruction. Apparently defendant rabbi did not consider plaintiff to be Jewish.

In Pettiford v. Davis, 2012 U.S. Dist. LEXIS 92020 (SD IN, July 3, 2012), an Indiana federal district court dismissed the RLUIPA and free exercise claims of plaintiff who, while held in home detention, was disciplined for drug use violations by being confined at home. Plaintiff had claimed his religious rights were violated because during this period he was not permitted to attend church services.

In Anello v. Williams, 2012 U.S. Dist. LEXIS 90615 (D OR, June 28, 2012), an Oregon federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 90599, March 20, 2012) and dismissed claims by a Native American inmate who is a Thelemite, who argues that his 1st Amendment and RLUIPA rights were infringed. While he was on STM cell restriction for 6 days, plaintiff's religious materials were confiscated and he was denied access to religious services.

NY Marriage Equality Act Survives Open Meeting Act Challenge

In New Yorkers for Constitutional Freedoms v New York State Senate, (NY App. Div., July 6, 2012) a New York state appeals court rejected a challenge to the state's Marriage Equality Law (which permits same-sex marriage) enacted last year. Plaintiffs claimed that private lobbying of the Republican Conference of the State Senate in favor of the law by New York City Mayor Michael Bloomberg and Governor Andrew Cuomo violated the Open Meetings Act. The court concluded that the exemption in the Open Meetings Law for deliberations of political caucuses, including invited staff or guests, covered the lobbying being challenged. It rejected the argument that the exemption for invited guests only includes guests of the same political party as the caucus. Advocate.com reports on the decision.

Sudan's Leader Promises 100% Islamic Constitution

Reuters reports that in Sudan today President Omar Hassan al-Bashir in a speech to Sufi Islamic leaders promised that Sudan's next constitution will be 100% Islamic.  He said in part:

We want to present a constitution that serves as a template to those around us. And our template is clear, a 100 percent Islamic constitution, without communism or secularism or Western (influences).And we tell non-Muslims, nothing will preserve your rights except for Islamic sharia because it is just.

Al-Bashir, who has been in power for 23 years and is wanted by the International Criminal Court for war crimes in Darfur, gave no date for the new constitution. Sudan's opposition parties have called for strikes and protests to topple al-Bashir's government.

Suit Challenges Community College's Speaker and Literature Distribution Rules

The Thomas More Society yesterday filed a lawsuit in federal district court in Ohio challenging the speaker access and literature distribution rules of Sinclair Community College in Dayton, Ohio. The suit was brought on behalf  of two students who are members of the college’s Traditional Values Club and the founder of two pro-life groups who is often invited to speak on campuses. The complaint (full text) in Deddens v. Warren County Montgomery County Community College District, (SD OH, filed 7/6/2012) alleges that the College’s policies place broad restrictions on the distribution of materials on campus, require advance approval of speakers with broad discretion in the college president to deny an application, and prohibit recognized student clubs from hosting more than two events per month. The school also prohibits any kinds of signs, whether by sponsors or protesters, at student events. The suit alleges that these rules and policies operate as prior restraints on speech and are overbroad regulations that have a chilling effect on speech.

Discrimination Claim By Fired Employee Who Asked Customer About Religion Is Dismissed

In Botnik v. HearingPlanet Inc., (MD YN, July 3, 2012), a Tennessee federal district court dismissed as unproven Title VII and state employment discrimination claims by a sales representative for a hearing aid company. Plaintiff, who says his national origin is Russian Israeli and his religion if Christian Jewish, was fired after his co-workers complained he was involved in an inappropriate telephone conversation with a customer. In the conversation, plaintiff asked the customer about her national origin and asked whether her husband was Jewish. Plaintiff cites the company's policy of trying to establish rapport with the customer, but the company fired him on the ground that he had asked inappropriate questions of a customer that made his co-workers uncomfortable. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

Feared Impact on Military Chaplains of DADT Repeal Has Not Materialized

A lengthy AP article published Wednesday concludes that despite dire warnings to the contrary, the military's elimination of the "don't ask, don't tell" policy has created no serious infringements of military chaplains' free exercise rights or rights of conscience. At most, 2 or 3 chaplains' departures from active duty were related to the policy's repeal. Even outspoken opponent of repeal, Archbishop Timothy Broglio of the Catholic Archdiocese for the Military Services, says he is unaware of any major problems that have arisen because of the repeal. "It’s more a question of what might occur in the future," he said, adding, "As time goes by, it will be a challenge, to make certain you’re not silently condoning." According to the article:

The loudest assertions that conservative chaplains face problems come from outside the active-duty ranks, notably from a coalition of retired chaplains and other religious leaders called the Chaplain Alliance for Religious Liberty. In a letter to a Republican congressman in March, the alliance contended that repeal has been implemented “with an open and palpable hostility” to chaplains and service members who disapprove of homosexuality.

[Thanks to Pew Forum for the lead.] 

Drunk Driver's Sentence Includes Study of Book of Job

The Rock HIll (SC) Herald reported yesterday that a respected state trial court judge has sentenced a woman who pleaded guilty to drunk driving to 8 years in jail, 5 years probation and substance abuse counseling. In addition Judge Michael Nettles is requiring her to read the Biblical book of Job and write a summary of it.  Defendant Cassandra Tolley's attorney says that Tolley is "thankful for the assignment" and has already started working on it. Tolley, a long-time victim of abuse who then turned to alcohol, is remorseful for the serious injuries she caused to two people in the car crash that resulted from her driving with a blood alcohol level 4 times the legal limit.

Jewish Institutions Awarded Most of the Federal Security Grants for Non-Profits

Last week, the federal Department of Homeland Security announced the final allocations for seven FY 2012 Preparedness Grant programs. One of the programs is the Nonprofit Security Grant Program that for the coming fiscal year provides $10 million for hardening targets and enhancing physical security at nonprofit organizations that are at high risk of a terrorist attack and are located in certain urban areas. The Forward reported yesterday that Jewish institutions received 97% of the 2012 grants under this program. The program has particularly benefited Jewish organizations since it was begun in 2005. (See prior related posting.) DHS Secretary Janet Napolitano has explained this, saying that there are special terrorism risks facing the Jewish community. Also the Jewish community has been particularly aware of the grant program. In an interesting choice of words,William Daroff of the Jewish Federations of North America defended the allocations saying: "This is not pork. This is Homeland Security officials making decisions based on threat levels."

Scientist Says "God Particle" Nickname For Higgs Boson Could Offend

As reported by the Washington Post, scientists in Geneva, Switzerland yesterday announced that they had found the elusive Higgs boson, a sub-atomic particle that gives mass to other particles. The particle has sometimes been referred to as the "God particle" because it is so fundamental that without it nothing could exist. Christianity Today reports on why scientists do not like the "God particle" nickname. Peter Higgs, who predicted the existence of the particle, has said:

I find it embarrassing because, though I'm not a believer myself, I think it is the kind of misuse of terminology which I think might offend some people.

Committee Of Egypt's Constitution Drafting Panel Narrows Religious Liberty Protections

In Egypt, the country's new constitution is being drafted by a 100-person Constituent Assembly representing an array of interests. (See prior posting.) Yesterday, citing the Middle East News Agency, Aswat Masriya reported that the Constituent Assembly's Rights and Freedoms Committee has agreed on wording that narrows the protection of religious freedom.  Art. 46 of the current constitution provides: "The State shall guarantee the freedom of belief and the freedom of practice of religious rites." Reportedly the new agreed-upon language is:

Religious freedom is complete and the state guarantees freedom of worship for believers in heavenly religions.

The limitation of protections to "heavenly" religions is seen as excluding Shiites and Baha’is.  Only two members of the committee objected to the new language.

State High Court Review Sought of Discrimination Finding In Refusal To Photograph Same-Sex Ceremony

A photography firm is asking the New Mexico Supreme Court to review a decision in which a state appellate court found a violation of the state's anti-discrimination law when the firm refused to provide its services to photograph a same-sex commitment ceremony. (See prior posting.) The petition for certiorari to the state's high court (full text) in Elane Photography, LLC v. Willock, (filed 6/27/2012) raises compelled speech, free exercise and state RFRA arguments. [Thanks to Neil Davis for the lead.]

Court Accepts Settlement In 10 Commandments In Schools Case

Today's Roanoke Times reports that a Virginia federal district court yesterday accepted the parties' settlement agreement and formally dismissed a lawsuit against the Giles County (VA) School Board that had been brought to challenge the schools' posting of Ten Commandment displays in the schools.  As previously reported, the Board had already agreed to replace the Ten Commandments text that was displayed at Narrows High School with a copy of a page from a history textbook captioned "Roots of Democracy." [Thanks to Scott Mange for the lead.]

Woman Excluded From Catholic Church's Masses Loses Lawsuit Challenging Actions

In Lye v. City of Lacey, 2012 U.S. Dist. LEXIS 91523 (WD WA, June 29, 2012), a Washington federal district court dismissed a suit that was brought against the Seattle Catholic archdiocese and its pastoral coordinator, as well as against the city of Lacey, Washington, by a woman who had been barred by the Church, through formal trespass warnings, from attending Mass at the largely Korean Sacred Heart parish. The Church's move came after plaintiff continued to advocate for resumption of a Mass given in Korean.  The court held that as to the Church and its officials, no 1st Amendment claims are available because they are not state actors.  It also found that plaintiff had not alleged sufficient facts to support either a conspiracy or an outrage claim. It  dismissed plaintiff's defamation claim because she failed to name as a party the priest who had allegedly made the statement. The court did partially grant plaintiff's motion to amend her pleadings, but only to add a new party as defendant in the defamation claim.

Sacred Sufi Shrines Destroyed By Islamists In Mali

In northern Mali last week, the Islamist (and Al-Qaeda allied) Ansar Dine ("Defenders of Faith") ousted the Tuareg MNLA rebels from the famed town of  Timbuktu. As reported by AFP, even though the Tuareg rebels spearheaded the takeover of northern Mali by various opposition groups last March, now the Islamists have moved to take over control. Then, over the weekend, according to the Christian Science Monitor, Ansar Dine destroyed seven historic tombs and the door to an ancient mosque in Timbuktu. These sites were already on UNESCO's heritage danger list. The tombs are sacred shrines for local Sufi Muslims, but the Islamist say that they amount to idolatry. The International Criminal Court quickly issued a statement calling the destruction a potential war crime. ABC News has more detail on the holy places that were destroyed. The Organization of Islamic Cooperation called the destruction the work of "bigoted extremist elements." An AFP report dated Wednesday says that Economic Community of West African States has 3,300 troops ready to enter Mali, but it is awaiting either a U.N. resolution authorizing their use, or a stronger unity government in Mali that can request the troops.

Israeli Committee On Law To Draft Haredi Into the Military Is Dissolved

In Israel, Prime Minister Benjamin Netanyahu yesterday disbanded the so-called Plesner Committee that was supposed to create a new law to end the exemption from the military draft for haredi (ultra-Orthodox) Jews after Israel's Supreme Court struck down the Tal law which gave yeshiva students exemptions. Haaretz reported yesterday that two of the government coalition partners withdrew from the committee last week after it would not go far enough in meeting their demands that all Israeli Arabs (who are now draft exempt) be subject to the draft. Then the haredi representative on the committee left over threats to use personal sanctions against ultra-Orthodox men who avoid military service. Netanyahu said: "Unfortunately, the committee could not reach an agreed-upon formulation and it could not form a recommendation that would garner a majority in the Knesset."

UPDATE: Jerusalem Post reports that despite the Prime Minister's dissolution of the Plesner Committee, on Wednesday (July 4) Committee chairman Yohanan Plesner at a news conference presented the committee's recommendations in his own name. The recommendations call for a complex arrangement that would result in most haredi men serving in an obligatory national service by the time they reach age 23 or else facing a significant fine.

Police Officer Sues Claiming He Was Fired Because He Converted To Islam

A former Norton, Ohio police officer filed suit in federal district court in Ohio yesterday claiming that he was fired because of his conversion to Islam. The Akron Beacon Journal reports that according to plaintiff Nicholas Matheny, Police Chief Thad Hete found out about his conversion in September 2010 when Matheny handed out wedding invitations. When Matheny returned from his honeymoon, Hete and the city's chief administrator tried to convince him to resign, threatening to place backdated warnings in his police file. When Matheny refused, he was fired.

Austria Celebrates 100th Anniversary of Its Inclusive Law on Islam

Last weekend, senior Austrian government officials and members of Austria's Islamic community attended ceremonies to mark the 100th anniversary of Austria's Law on Islam.  BBC reports that the law is seen as a model of tolerance in Europe.  The law as originally enacted provided:

The adherents of Islam shall be granted recognition as a religious community in the kingdoms and crown-lands represented in the Imperial Council in the meaning of the Constitutional Law of 21 December, 1867... The religious community of the adherents of Islam according to the Hanafite rite shall... enjoy the same legal protection as is granted to other legally recognised religious communities. The doctrines of Islam, its institutions and customs shall enjoy the same protection too, unless they are in contradiction to state law.

The law, which was later expanded to include other forms of Islam in addition to Hanafi, came into force in 1912 as an attempt to integrate Muslim Bosnian soldiers into the Habsburg Army.

Ballot Title For Minnesota Same-Sex Marriage Ban Amendment Creates Controversy

Minnesota Secretary of State Mark Ritchie announced last week that the title of the proposed state constitutional amendment banning recognition same-sex marriage (full text) that will appear on the November ballot will be "Limiting the Status of Marriage to Opposite Sex Couples."  According to the Minneapolis Star-Tribune, backers of the amendment are furious. They had wanted the ballot title to read: "Recognition of Marriage Solely Between One Man and One Woman"-- the title chosen by the state legislature. Even though the legislature prescribed a title for the ballot measure, the governor vetoed the bill containing the proposed amendment. (Veto letter.) However the veto does not prevent the measure from appearing on the ballot because the Minnesota Constitution Art. IX provides that amendments are submitted to the voters by a majority of the members of each house. However apparently the portion of the bill setting the title for the ballot measure is treated as ordinary legislation so that the veto did invalidate that section. So then under Minnesota Statutes Sec. 204D.15, the choice of a title falls to the secretary of state, who must submit it to the attorney general for approval. Backers of the amendment believe that the new title may influence voters who do not like government restrictions to vote against the measure. They are considering whether to file a lawsuit over the title. [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Steven H. Resnicoff, Extraordinary Sources of Jewish Law: the Example of Capital Punishment,, (Steven H. Resnicoff, Chapter 8 of Understanding Jewish Law, LexisNexis, 2012).
• Rene Provost, Magic and Modernity in Tintin au Congo (1930) and the Sierra Leone Special Court, (June 25, 2012).
• Nicolai N. Petro, The Role of the Orthodox Church in a Changing Russia, (ISPI Analysis #121, Institute for the Study of International Politics, Milan, Italy, June 2012).
• David A. Grenardo, Samuel D. Davis and Thomas M. Gutting, Take One Step Forward: Federal Courts Continue to Find that Volunteers are Shielded from Retaliation Based on Protected Speech Under the First Amendment, (First Amendment Law Review, Vol. 10, No. 1, 2011).
• Lewis D. Solomon, God and Human Destiny: A Jewish Perspective, (GWU Legal Studies Research Paper No. 2012-53).
• Richard S. Myers, Same-Sex Marriage, Education, and Parental Rights, (Brigham Young University Education and Law Journal, Vol. 2011, No. 2).
• Richard S. Myers, Assessing the Legal Bases for Conscientious Objection in Healthcare, (Life and Learning XVIII: The Proceedings of the Eighteenth University Faculty for Life Conference 57-82, J. Koterski ed. 2011).
• Mehmet Asutay and Zulkifli Bin Hasan, An Analysis of the Courts’ Decisions on Islamic Finance Disputes, (ISRA International Journal of Islamic Finance, 3 (2), 41-71, 2011).
• Kimberley Brownlee and Richard Child, Can the Law Help Us to Be Moral?, (Warwick School of Law Research Paper No. 2012/17).
• Kimberley Brownlee, Conscientious Objection and Civil Disobedience, (Warwick School of Law Research Paper No. 2012/15).

Connecticut Mosque Sues Over Zoning Refusal

The Hour reports that Norwalk, Connecticut's Al-Madany Islamic Center last week filed a suit in federal district court charging that its 1st Amendment free exercise rights, its rights under RLUIPA and under Connecticut's Religious Freedom Act were violated when the Norwalk Zoning Commission rejected its plans for a new mosque and multipurpose hall. The lawsuit claims that the usual factors that lead to zoning approval were discounted in the face of strong discriminatory opposition to the zoning application.

UNESCO Places Church of Nativity On Heritage List In Move With Political Ramifications

UNESCO announced last week that the Church of the Nativity, known to Christians as the birthplace of Jesus, has been added to UNESCO's World Heritage List and also to UNESCO's "List of World Heritage in Danger" because of damage to the Church from water leaks. UNESCO's World Heritage Committee voted 13-6 with 2 abstentions in favor of the designation.  As with much in the region, the move has been viewed by many as more jockeying in the Israeli-Palestinian dispute.  As reported by Haaretz, the Church was added to UNESCO's list through an emergency procedure rather than through the regular 18-month process.The United States, UNESCO's experts committee, and the three churches that are custodians of the site all preferred use of the lengthier regular process. Palestinians see the quick action as an affirmation of Palestinian sovereignty over the site, while Israel sees it as evidence that UNESCO was acting for political rather than cultural reasons. Last year after the Palestinian Authority failed to obtain full membership status in the United Nations as a whole, UNESCO voted to admit Palestine as a full member, prompting United States cutoff of funding to UNESCO. (Background.)

Cert. Petition Filed In Defense of Marriage Act Challenge

A petition for certiorari (full text) was filed Friday in Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. In the case, decided by the 1st Circuit under the title Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, the appeals court 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 and other states. (See prior posting.)  The Bipartisan Legal Advisory Group that filed the cert. petition was intervenor-appellant in the court of appeals below.  SCOTUS Blog reports on the filing of the cert. petition. [Thanks to Alliance Alert for the lead.]

German Political Leaders Say Religious Circumcision Should Be Protected

According to AP, Germany's foreign minister Guido Westerwelle moved today to reassure critics after a controversial German court ruling last week held that young boys' rights were infringed when parents decided to have them circumcised for religious reasons. Westerwelle said:

The free exercise of religion is protected in Germany. That includes religious traditions. All our partners in the world should know that.

Volker Beck, an opposition Green Party senior lawmaker, said that it should be clarified that circumcision on religious grounds is justified as long as hygienic and medical standards are met. However he left open the question of whether this clarification should be obtained through the courts or by legislation.

Meanwhile YNet News reports that Jewish Hospital in Berlin has decided to suspend all circumcisions of children for religious reasons until the legal situation is clarified.

UPDATE: The full text of the court's decision in the case is now available via UK Human Rights Blog. The original decision in German is here. An English translation is here. [Thanks to Eric Rassbach via Religionlaw listserv.]

Recent Prisoner Free Exercise Cases

In Walker v. Cate, 2012 U.S. Dist. LEXIS 86987 (ED CA, June 21, 2012), a California federal magistrate judge recommended dismissing claims by a white Christian/Odinist inmate that his rights under the free exercise clause and RLUIPA were violated when he was classified as eligible for double celling with inmates of other races. Plaintiff claimed that his religious beliefs forbid him from sharing a cell with someone of another race.

In Vann v. Fischer, 2012 U.S. Dist. LEXIS 87620 (SD NY, June 20, 2012), a New York federal district court permitted an inmate who was a practitioner of Santeria to move forward on free exercise, RLUIPA and equal protection claims. Plaintiff alleged that he was not allowed to wear Santeria beads.

In Davis v. Armenta, 2012 U.S. Dist. LEXIS 88381 (ED CA, June 25, 2012), a California federal magistrate judge dismissed as frivolous an inmate's claim for $999 trillion in damages after the sheriff tore down a picture of a Thompson sub-machine that hung on plaintiff's bunk bed. Plaintiff claimed that the image of the sub-machine gun was his god/goddess.

In La Vell Harris v. Lake County Jail, 2012 U.S. Dist. LEXIS 89306 (ND CA, June 27, 2012), a California federal magistrate judge dismissed with leave to amend an inmate's free exercise claim against a jail nurse. Plaintiff claimed his religion prevents him from taking pain medication (other than marijuana), that he cannot stand or walk without pain, and that he was denied a wheel chair. His claim of religious and racial discrimination was dismissed with prejudice.

In Blum v. Clements, 2012 U.S. Dist. LEXIS 89813 (D CO, June 28, 2012), a Colorado federal magistrate judge, while dismissing many of plaintiff inmate's claims, permitted plaintiff to move ahead on a free exercise and RLUIPA complaint that he was required to surrender various art works, including religious art, and was terminated from the sex offender treatment program for refusing to write essays on how images of minors were high risk and how he used "religiosity" as a tactic to avoid treatment.

In Villanueva v. River, 2012 U.S. Dist. LEXIS 89399 (D SC, June 28, 2012), a South Carolina federal district court held that an inmate's free exercise claims are not cognizable in a habeas corpus proceeding. Plaintiff complained that federal prison officials refused to accommodate his "Kingism" religious beliefs by not allowing him to wear his religion's colors. He sought prison recognition of his religion.

In Quinn v. Knab, 2012 U.S. Dist. LEXIS 89479 (SD OH, June 27, 2012), an Ohio federal magistrate judge recommended that an inmate, a white separatist "Christian Identity" adherent, be allowed to proceed with his free exercise and RLUIPA challenges to prison officials' refusal to permit him to take the Nazarite vow which entails restrictions on cutting hair, foods consumed, and working on the Sabbath. The court rejected plaintiff's equal protection and retaliation claims.

In Sousa v. Wegman, 2012 U.S. Dist. LEXIS 90023 (ED CA, June 27, 2012), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that prison officials refused to accommodate his Mexican Indian (Aztec/Mayan/Toltec) religion and instead required him to use an existing Native American religious services program.

In Crosby v. Lee, 2012 U.S. Dist. LEXIS 90090 (WD VA, June 28. 2012), a Virginia federal district court dismissed without prejudice a Muslim inmate's suit against a jail superintendent complaining that he was deprived of the opportunity to attend Friday Jumm'ah services, he was denied his prayer rug, and he was not alerted when meals contained pork.

In Johns v. Lemmon, 2012 U.S. Dist. LEXIS 89901 (ND IN, June 26, 2012), an Indiana federal district court permitted plaintiff, who claimed to be an "observant Jewish prisoner," to proceed with his suit alleging that a fundamental tenet of his religious beliefs is that he cannot eat food cooked on Saturday, and that prison officials have stopped their previous practice of providing him his food for Saturday on Friday night.

Church Autonomy Doctrine Does Not Bar Defamation and Breach of Fiduciary Duty Claims

In Bilbrey v. Myers, (FL App., June 29, 2012), a Florida state appellate court reversed a trial court's reliance on the church autonomy doctrine and permitted a former church member, Darrel Bilbrey, to proceed with his defamation and breach of fiduciary duty claims against the church's pastor David Myers. Originally Myers sponsored Bilbrey to obtain a license to minister in the Pentecostal church.  Subsequently Myers came to believe that Bilbrey was gay and claimed that  Bilbrey's upcoming marriage was a sham to hide his homosexuality. Myers made these charges of homosexuality during a meeting with Bilbrey and three others; in a sermon; and to Bilbrey's pastor in Michigan after Bilbrey moved and sought to have his ministerial license transferred there.  The court held:

The First Amendment does not grant Myers, as pastor of FPC, carte blanche to defame church members and ex-members. If untrue, the statement that a person is a homosexual has long been recognized as potentially defamatory outside the context of any religious doctrine or practice. This claim can be adjudicated without implicating the First Amendment and was improperly dismissed on the basis of the church autonomy doctrine.... 

As to Bilbrey's claim for breach of fiduciary duty—based on allegations that Myers had a fiduciary duty to Bilbrey because of the pastor/church member relationship and the internet filtration and accountability program [in which Myers was Bilbrey's "accountability partner"]—the First Amendment does not necessarily bar such claims.

Plaintiff's intentional infliction of emotional distress and invasion of privacy claims were dismissed.

Michigan Outlaws Disrupting Religious Services

As reported by WLNS News, last Monday (legislative history) Michigan Governor Rick Snyder signed HB 5560 (full text) making it a misdemeanor to enter or remain on property, or obstruct entry or exit to property, with the intent of disrupting individuals meeting there in the pursuit of their free exercise of religion. First offenders may be sentenced to up to 93 days in jail, $1000 fine or 100 hours of community service.

District Court's Permanent Injunction Lets Churches Rent New York School Building Space On Weekends

In Bronx Household of Faith v. Board of Education of the City of New York, (SD NY, June 29, 2012), a New York federal district court issued a permanent injunction barring the New York City board of education from enforcing a rule that keeps churches from renting out space in school buildings for their weekly services. While generally allowing community groups to rent out space outside normal school hours for meetings and activities, Chancellor’s Regulation D-180 precludes rental by churches that wish to use the space for worship services or wish to use the school space as a house of worship. Earlier this year, the court granted a preliminary injunction in the 17-year long dispute over the regulation. (See prior posting.) In granting the permanent injunction the court held that the Regulation violates plaintiff’s free exercise rights, saying that the rule imposes “a substantial burden on Plaintiffs’ free exercise rights,” while the school board raises only “a misperceived Establishment Clause concern.”.

The court found, further, that as administered Regulation D-180 violates the Establishment Clause by involving Board of Education officials in determining whether or not a group’s proposed activities amount to religious worship or use of the school building as a house of worship. This type of Board review requires state officials to inquire into religious doctrine. Alliance Defense Fund issued a press release announcing the court’s decision. The New York Times yesterday reported on the decision. Bloomberg News reports that the city plans an immediate appeal.

Supreme Court Denies Cert. In Free Exercise Challenge To Affordable Care Act

After yesterday's historic decisions, the U.S. Supreme Court today denied certiorari (Order List) in other cases involving challenges to the Patient Protection and Affordable Health Care Act. The petition for certiorari (full text) in at least one of those cases, Docket No. 11-679, Seven-Sky v. Holder, had raised a free exercise challenge to the ACA. In the case, the D.C. Circuit Court of Appeals had given short shrift to challengers' Religious Freedom Restoration Act argument, holding that appellants had "failed to allege facts showing that the mandate will substantially burden their religious exercise." (See prior posting.) For a lengthier discussion of free exercise challenges to the individual mandate, see my posting from yesterday.

Religious Interrogatories Quashed On Privacy and Free Exercise Grounds

In Guthrey v. California Department of Corrections & Rehabilitation, 2012 U.S. Dist. LEXIS 89174 (ED CA, June 27, 2012), a California federal magistrate judge sustained objections by defendants in a religious discrimination lawsuit to interrogatories put forward by plaintiff Raymond Guthrey regarding the individual defendant's religious beliefs.  Guthrey, an adherent of the Ananda Marga faith, was prevented by Department of Corrections employee Michael Pate, Jr. from participating in the Department of Corrections Retired Annuitant Program. Guthrey, who had been approved as a Correctional Counselor in that program, contended that Pate's actions were motivated, at least in part, by his dislike of Guthrey's religion.  Seven of plaintiff's interrogatories asked about Pate's religious beliefs and attendance at religious services. Plaintiff claimed that answers would lead to information regarding defendant's likely level of religious and racial intolerance. The court disagreed, holding that the interrogatories are irrelevant, and that even if they are not, defendant's right to privacy and the 1st Amendment protection of his religious associations allow him to refuse to answer. The court said in part:

[I]f this Court were to become a "sword" of Title VII plaintiffs used to gain access to unfettered inquisitions into an individual's most private and intimate religious views, a "chilling" impact on religious associational rights would result. Plaintiff asks this Court to compel disclosure so that the information may be used to attain monetary damages for such religious beliefs. Such circumstances would substantially burden both the individual's and the group's ability and inclination to freely pursue their religious beliefs and practices.

The court did allow Guthrey to pursue interrogatories regarding any past religious discrimination complaints against defendants, but allowed defendants to omit the names of the complainants in order to protect their privacy.

3rd Circuit: Ousted Church Member May Not Sue On Behalf of Church

In Askew v. Trustees of the General Assembly of the Church of the Lord Jesus Christ of the Apostolic Faith, Inc., (3d Cir., June 28, 2012), the U.S. 3rd Circuit Court of Appeals held that plaintiff, a member of a dissident faction in a Church, lost standing to continue a lawsuit charging Church leaders with misappropriation of assets once plaintiff's Church membership had been terminated by the Church's religious leader. Joseph Askew filed suit against Bishop Kenneth Shelton in January 2009. In August 2009, Shelton executed a sworn declaration stating that Askew and other dissidents had not been recognized as Church members since 1992 when the split occurred. The court held that Bishop Shelton's authority to excommunicate members "falls squarely within the realm of matters insulated from civil court review." The court added that "consistent with the nonentanglement principle,we accept [Shelton's] pronouncement as conclusive. Any other approach would embroil this Court in a two-decade-long intra-Church battle central to its mission and spiritual identity." The court went on to hold that once Askew had lost his Church membership, he no longer had standing to assert claims alleging harm to the Church. The court added:

A doctrinally grounded decision made during litigation to insulate questionable church actions from civil court review may indeed raise an inference of fraud or bad faith.... Under those circumstances, the integrity of the judicial system may outweigh First Amendment concerns such that a civil court may inquire into the decision.  But we find no basis for the inference here.

The Philadelphia Inquirer reports on the decision.

Diocese and Bishop Sued Over Sexual Abuse of Woman In Deliverance and Exorcism Sessions

In Arlington, Virginia last week, a woman filed suit in state court against the Catholic Diocese of Arlington, the bishop responsible for the diocese, and two pro-life organizations, seeking to hold them liable for injuries plaintiff suffered when she was sexually abused by a priest in the course of Spiritual Deliverance and the rite of exorcism. The suit seeks $5.35 million in damages. The complaint (full text) in Doe v. Catholic Diocese of Arlington, (VA Cir. Ct., filed 6/19/2012), alleges that plaintiff signed an "Agreement for spiritual help" with a priest, Thomas Enteneuer, under which he was to apply the spiritual resources of the Church to liberate plaintiff from a demonic infestation of unclean spirits. As Enteneur's sessions with plaintiff progressed over a two year period, he touched and kissed her sexually, telling her that he was blowing the Holy Spirit into her. He also digitally penetrated here. Enteneur eventually paid for moving plaintiff closer to him, and hired her through pro-life organizations he headed. The suit claims that the Diocese and related defendants should be held liable for Enteneur's actions.  Plaintiff alleged claims for assault, battery, intentional and negligent infliction of emotional distress, negligent entrustment and negligent retention. Courthouse News Service and the Huffington Post report on the lawsuit. According to the Palm Beach Post, other women have made similar charges against Eneneur, who has been recalled by his Palm Beach Diocese.

4th Circuit Upholds Released Time Program of South Carolina School District

In Moss v. Spartanburg County School District Seven, (4th Cir., June 28, 2012), the U.S. 4th Circuit Court of Appeals upheld Spartanburg's released time program that permits high school students to receive two academic credits for off-campus religious instruction offered by a private Bible school. Grades are funneled through an accredited private Christian school that reviews and monitors the program, and the grades are then transferred to the student's public school transcript. The program is authorized by the state's Released Time Credit Act. (See prior posting.) Approximately 20 out of the school's 1500 students take the religion course each year. Finding that only some of the plaintiffs had standing to challenge the program, the court went on to conclude that under Supreme Court and 4th Circuit precedent, the Spartanburg program does not violate the Establishment Clause:

Here, the School District’s released time policy takes place off campus and expressly prohibits any use of public staff or funds for its execution.... The fact that a public school accepts credits for released time courses does not alter the analysis under any one of Lemon’s three prongs in view of the neutral administrative manner adopted by the School District for accepting those credits. The School District employed a model in which primary responsibility for evaluating released time courses lay with accredited private schools, not the public schools.

[Thanks to  Stephen Ruckman and Derek Gaubatz for the lead.]

The Free Exercise Issues As To the Individual Mandate That Were Not Decided By SCOTUS Today

As has been widely reported, today in National Federation of Independent Business v. Sebelius, (Sup. Ct., June 28, 2012), the U.S. Supreme Court upheld the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act (often referred to by its detractors as "Obamacare").  However the Court's opinions did not deal with narrower conscience challenges to the individual mandate.  These have generally been rejected by lower courts. The Affordable Care Act (26 USC 5000A(d)(2)) has two explicit, but narrow conscience exemptions from the mandate to buy health insurance:

(1) members of religious sects, such as the Amish, who are exempt from Social Security taxes under exiting law. These are described in Sec. 1402(g) of the Internal Revenue Code:

a member of a recognized religious sect ... [who] is an adherent of established tenets or teachings of such sect ... by reason of which he is conscientiously opposed to acceptance of the benefits of any private or public insurance which makes payments in the event of death, disability, old-age, or retirement or makes payments toward the cost of, or provides services for, medical care...

(2) members of health care sharing ministries.

Some lawsuits have unsuccessfully claimed that these exemptions violate the Establishment Clause by privileging some religious sects over others.

Beyond this, individuals who do not fit into either of these two specific groups of statutory exemptions have brought claims that their free exercise rights are violated by the individual mandate.  One type of claim is that rejected by the D.C. Circuit in Seven Sky v. Holder (see prior posting), where plaintiff alleged (see prior posting) that she:

has a sincerely held religious belief that God will provide for her physical, spiritual, and financial well-being. Being forced to buy health insurance conflicts with Seven-Sky's religious faith because she believes that she would be indicating that she is not really sure whether God will, in fact, provide for her needs, so she needs to rely on a health insurance policy as a back-up plan.

A second type of conscience objection-- also rejected by lower courts-- has been raised by those who claim that payments required under the Act will somehow be used for abortion services. An elaborate compromise adopted as part of the Act was designed to prevent this (see prior posting), and decisions such as the district court's in Liberty University Inc. v. Geithner  have held that "the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered."  A similar result was reached by at least one Circuit Court judge. (See prior posting.)"  The only mention of religious exemptions in today's opinions came in Justice Scalia's dissent as part of his argument that the individual mandate is not an exercise of Congress' taxing power. He said:

That §5000A imposes not a simple tax but a mandate to which a penalty is attached is demonstrated by the fact that some are exempt from the tax who are not exempt from the mandate—a distinction that would make no sense if the mandate were not a mandate. Section 5000A(d) exempts three classes of people from the definition of “applicable individual” subject to the minimum coverage requirement: Those with religious objections or who participate in a “health care sharing ministry,§5000A(d)(2); those who are “not lawfully present” in the United States, §5000A(d)(3); and those who are incarcerated, §5000A(d)(4). Section 5000A(e) then creates a separate set of exemptions, excusing from liability for the penalty certain individuals who are subject to the minimum coverage requirement: [e.g.] Those who cannot afford coverage.... If §5000A were a tax, these two classes of exemption would make no sense; there being no requirement, all the exemptions would attach to the penalty (renamed tax) alone.

Sheriff Can Be Sued By Rape Victim Denied Anti-Conception Pill By Religious Jail Guard

In R.W. v. Spinelli, (MD FL, June 14, 2012), a Florida federal district court denied a sheriff's motion to dismiss an official capacity suit against him under 42 USC Sec. 1983 by a woman alleging privacy and equal protection violations.  Plaintiff, R.W., was a rape victim and was prescribed two anti-conception pills at a rape crisis center. She took one there and was instructed to take the other 12 hours later.  Shortly thereafter, while investigating the rape, a police officer discovered that R.W. had an outstanding arrest warrant against her and took her to jail.  Her remaining pill was taken from her, and the only employee on duty with authority to do so refused to give it to her to take because doing so would violate the employee's religious beliefs. R.W. was allowed to take the pill the next morning just prior to her release. In an earlier decision (see prior posting), the court permitted R.W. to move ahead with her suit against the jail employee, but dismissed the claims against the sheriff in his official capacity.  Plaintiff then filed an amended complaint against the sheriff, who again sought dismissal. In moving to dismiss, the sheriff argued that the complaint did not allege that an unconstitutional official policy or custom of the county was involved. The court this time, however, disagreed, saying: "the single action of a final policy-maker can represent official government policy, even when the action is not meant to control later decisions...."  Since the sheriff had not promulgated any policy on refusing to dispense anti-conception medication, the jail employee essentially became the final policy maker on this issue. Courthouse News Service reports on the decision.

4th Circuit: Required Posting By Pregnancy Centers Is Unconstitutional Compelled Speech

In a 2-1 decision in Greater Baltimore Center for Pregnancy Concerns v. Mayor and City Council of Baltimore, (4th Cir., June 27, 2012), the U.S. 4th Circuit Court of Appeals yesterday struck down a Baltimore ordinance that requires "limited-service pregnancy centers" to post signs announcing that that they do not provide or make referrals for abortion or birth control services. The majority agreed with plaintiff, a Catholic  pregnancy center, that the law compels it to speak to clients and potential clients in a manner that it would not otherwise do. The majority found that the city has not shown a compelling interest for infringing on the Center's non-commercial speech rights in this manner. The majority explained:

Here, the record establishes, at most, only isolated instances of misconduct by pregnancy centers generally, and, as the City concedes, none by the Pregnancy Center itself. Indeed, the record contains no evidence that any woman has been misled into believing that any pregnancy center subject to Ordinance 09-252 was a medical clinic or that a woman in Baltimore delayed seeking medical services because of such a misconception. The City instead cites allegations of deceptive practices occurring in other locations or second-hand reports of "stories about harassment."

Judge King dissenting called the majority's conclusion "indefensible." He argued:

Rushing to summary judgment, the court subverted the Federal Rules of Civil Procedure ... by ... denying the City essential discovery, refusing to view in the City’s favor what evidence there is, and making untoward findings of fact, often premised on nothing more than the court’s own supposition.

Defending the city, the dissent said:

The evidence relied on by the City Council revealed that limited-service pregnancy centers were using questionable tactics to delay women from accessing abortions. Such tactics included counseling women to undergo pregnancy tests and sonograms that were scheduled weeks after their initial pregnancy center visit, and misinforming women about abortion services, including when abortions could be lawfully obtained. Such delays placed the health of women who decided to have abortions at risk....

Newsmax reports on the decision. 

Islamist Invasion of Art Show In Tunisia Raises Fears Among Secular Intellectuals

Reuters yesterday reported from Tunisia on the impact of a June 10 incident in which Islamists broke into the Printemps des Arts fair being held at Abdeliya Palace in Tunis and destroyed a few pieces of artwork to protest art they deemed insulting to Islam. This was followed by days of Islamist riots that killed one person. Among the most controversial art on display was one depicting veiled women as punching bags and another showing veiled women in a pile of stones (commenting on stoning of adultresses). The piece causing the most anger was one that spelled out "Sobhan Allah" (Glory to God) in ants. Reuters comments that this is the latest incident to raise fears among secular intellectuals that the freedoms won in the Arab Spring revolution are being slowly contracted by the religious views of zealots.  Meriem Bouderbala, one of the curators at Printemps des Arts, said: 

After the revolution, artists had a feeling of freedom. They wanted to express freely. They produced very powerful art. The artists were not expecting this reaction. That is why they feel so fragile. They turned to the government but it is not supporting them so they feel they have hit a wall.

Church's "As Applied" Zoning Challenge Dismissed For Lack of Ripeness

Woodridge Church v. City of Medina, 2012 U.S. Dist. LEXIS 87687 (D MN, June 25, 2012) is a challenge under RLUIPA, the 1st and 14th Amendments and the Minnesota constitution to Medina, Minnesota's refusal to approve a church's expansion plans.  The city's refusal was followed by a moratorium on church construction and then the creation of a new zoning district that includes the church. The church withdrew its application for a conditional use permit and filed suit when city council implemented a square footage requirement below that of the church's planned expansion. The court dismissed for lack of ripeness the church's "as applied" challenges to the city's zoning decisions since the church has not obtained a final ruling from the city on its plans. However the court permitted the church to proceed with its facial challenges to the city's zoning decisions and its damage claims growing out of the zoning moratorium.

Hungarian Reform Jewish Congregations Challenge Non-Recognition In European Court

Jewish Journal reported from Hungary that the European Union for Progressive Judaism and Hungary’s two Reform Jewish congregations on Tuesday submitted an application to the European Court of Human Rights contending that Hungary's new Church Law is illegal and discriminatory. Hungary's Constitutional Court has already rejected their claims. Under the Hungarian law, which took effect on January 1, 3 other branches of Judaism are granted official recognition, but the Reform movement is not.  The law recognizes Neolog (Hungarian Conservative), Orthodox and Status-quo (associated with Chabad-Lubavitch) congregations. (Background.)

Cert. Denied In Challenge To Firings Of Moorish American Correctional Officers

The U.S. Supreme Court on Monday denied certiorari in Bey v. New York, (Docket No. 11-1340, cert. denied 6/25/2012). (Order List.) In the case, the 2nd Circuit dismissed on res judicata grounds a suit by two former New York City correctional officers who were members of the Moorish American Religion-- which teaches that Moors are exempt from taxes. In the suit, the officers challenged on constitutional grounds their termination for filing false tax documents. The Court concluded that a prior lawsuit which plaintiffs lost was based on the same series of transactions. (See prior posting.)

German Court Says Parents May Not Decide On Religious Circumcision For Their Sons

The Algemeiner as well as the Jewish Press report that a district court in Cologne, Germany ruled this week in an appeal from a trial court's decision that parents do not have the right to decide on religious circumcision for their sons.  The court said that non-medically necessary circumcision causes "serious and irreversible interference in the integrity of the human body." The court went on to hold that circumcision "contravenes the interests of the child to decide later on his religious beliefs."  It held that the parents' rights to provide for their children and their religious freedom are not sufficient justifications for imposing the harm caused by circumcision. According to Haaretz, the case grew out of a suit brought by German authorities against a Muslim doctor after his botched circumcision on a 4-year old boy caused the boy to be rushed to an emergency room. While the court held that doctors in the future can only perform circumcision for health-related reasons, it acquitted the doctor involved in this case because it was not clear previously that his conduct was illegal. Criticizing the court's decision, Rabbi Aryeh Goldberg of the Rabbinical Center of Europe said: "The decision is contrary to human rights charter of the European Union, to which the German legal system is committed, and undermines the basic right to worship in the German Constitution."

UPDATE: The full text of the court's decision in the case is now available via UK Human Rights Blog. The original decision in German is here. An English translation is here. [Thanks to Eric Rassbach via Religionlaw listserv.]

Former Student's Challenge To Remediation Plan On Counseling LGBT Clients Dismissed

In Keeton v. Anderson-Wiley, (SD GA, June 22, 2012), a Georgia federal district court, in a lengthy opinion, dismissed claims by a former graduate student in Augusta State University's graduate counselor education program that her constitutional rights were infringed when she was dismissed for refusing to complete a required remediation plan.  The remediation requirements were imposed when graduate student Jennifer Keeton, a devout Christian, told faculty that she would not condone the propriety of homosexual relations or a homosexual identity in a counseling situation.  This position violates professional ethical standards of the American Counseling Association that require counselors to respect the diversity of their clients and avoid imposing values on them that are inconsistent with counseling goals. The court rejected both Keeton's facial overbreadth and vagueness challenges as well as her "as applied" challenges to the remediation plan. Finding no viewpoint discrimination against Keeton, the court said:

Keeton's conflation of personal and professional values, or at least her difficulty in discerning the difference, appears to have been rooted in her opinion that the immorality of homosexual relations is a matter of objective and absolute moral truth. The policies which govern the ethical conduct of counselors, however, with their focus on client welfare and self-determination, make clear that the counselor's professional environs are not intended to be a crucible for counselors to test metaphysical or moral propositions. Plato's Academy or a seminary the Counselor Program is not; that Keeton's opinions were couched in absolute or ontological terms does not give her constitutional license to make it otherwise.

The court also rejected Keeton's "compelled speech" claim, saying that when someone voluntarily chooses a profession, the person must comply with its rules and ethical requirements.  Finally the court rejected Keetons's free exercise of religion, unconstitutional condition and equal protection challenges.

The court's decision was consistent with an earlier 11th Circuit decision in the case that refused to grant a preliminary injunction because plaintiff had not shown a substantial likelihood of succeeding on the merits. (See prior posting.)  SPLC reports on the district court's latest decision.

Issues of Fact Remain On Accommodation of Employee's Sunday Observance

In Jacobs v. Scotland Manufacturing, Inc., (MD NC, June 21, 2012), a former employee who was fired for refusing to work on Sundays for religious reasons sued under Title VII of the 1964 Civil Rights Act. The company claimed that it had offered the employee an accommodation. He could use vacation time in lieu of working on Sundays. Plaintiff, however, contended that this arrangement also violates his religious beliefs. The court refused to grant summary judgment for defendants, saying that factual questions remain as to the reasonableness of the employer's proposed accommodation and as to whether other accommodations would cause the employer undue hardship. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

RI Bill To Protect Cross On War Monument To Become Law Without Governor's Signature

Last week, the Rhode Island legislature passed and transmitted to the governor House Bill 8143 Sub A (full text) which creates the "Category One Memorial Designation Commission." The Commission is charged with identifying structures, sculptures, inscriptions and icons that existed prior to 2012 that are located on government property and which have "attained a secular traditional, cultural, or community recognition and/or value." These may include memorials related to military affairs. Otherwise eligible monuments are not excluded because they have a "recognizable identification with a known or established religion." The bill is obviously aimed at protecting a memorial to World War I servicemen that features a Latin Cross and is located in the Woonsocket fire station's parking lot. The Freedom from Religion Foundation has complained that the cross violates the Establishment Clause. (See prior posting.) According to WPRI News, on Monday Gov. Chaffee sent letters to the Speaker of the House and President of the Senate indicating that the bill would become law without his signature.  He said that the bill does not change the fact that it is up to the courts to decide whether any particular monument violates Establishment Clause restrictions. 

Suit Dropped After School District Agrees To Neutral Speech Rule

Yesterday's Beaumont (TX) Enterprise reports that a lawsuit filed in April against the Nederland (TX) Independent School District by the father of a 3rd grader has now been dropped because the school district has changed its rules in response to the suit.  At issue was the refusal by a teacher at Hillcrest Elementary School to allow the student to hand out to his classmates his handwritten invitations to a meeting at a local Baptist Church of Awana Clubs, an evangelical Christian youth organization. The new school rules provide that now the school district will not discriminate against any religious or non-religious private, "student-to-student non-disruptive speech."

New Survey On Women's Rights and Religious Views In Arab Spring Countries

Gallup yesterday released a new poll on After the Arab Uprisings: Women on Rights, Religion, and Rebuilding. The survey that covered countries affected by Arab Spring uprisings showed, among other things, that

... Arab women in the countries surveyed are far more similar to the men in their respective countries than they are to fellow females in the region. The majority of women and men across countries experiencing political upheaval do want some level of religious influence in law, though people’s views of the specific role for Sharia vary widely from one country to another.... Those who want no legislative role at all for Sharia are in a small minority in every country.

The survey also reports:

Gallup generally finds few differences between those who rate religion as “important” and those that rate it as “not important” in regard to their attitudes toward women’s rights, with one exception. The results show that seven in 10 adults (69%) who find religion important support women’s right to initiate a divorce, compared with fewer than five in 10 adults (46%) who say religion is not important.

School Board's Rejection of Proposed Referendum on Religion In Schools Upheld

In Torres v. Davis, 2012 U.S. Dist. LEXIS 87446 (D NJ, June 22, 2012), a New Jersey federal district court dismissed free exercise and equal protection claims of a Camden, NJ resident who wanted the Camden Board of Education to place on the election ballot a voter referendum on 3 questions:

1) Do you ... want your Public Schools to open the daily session in prayer in a pledge of allegiance to the god we trust by the children in acknowledgment of God and His son Jesus Christ. The Prayer given to us by His Son Jesus Christ the "Our Father Which art in Heaven hollowed [sic] be Thy Name."...

2) Do you ... want a Holy Bible based curriculum in your Public Schools which teaches the truth and the presence of God as creator in alignment with our New Jersey State Constitution where we are Grateful to Almighty God and looking towards Him for a blessing unimpaired in the endeavor to properly educate our children....

3) Do you ... want those fellow Camden, NJ residents who are on probation, or parole, or incarcerated for non violent offenses their civil right to vote in Camden School District Elections as a part of the rehabilitation process....

The court concluded that the Board did not have jurisdiction to place the third issue on the ballot. As to issues 1 and 2, the court held that adoption of them would violate the Establishment Clause. The court also held that the commissioner of education and attorney general are immune from damage claims under the 11th Amendment.

Court Dismisses Suit Seeking Return of Large Donations To Monastery

In Hoyle v. Dimond, (WD NY, June 22, 2012), a New York federal district court dismissed fraud, misrepresentation, RICO, deceptive practices, false advertising and equitable claims by plaintiff Eric Hoyle who was seeking return of part or all of the over $1 million that he had donated to the Most Holy Family Monastery (MHFM).  Hoyle, who rejected his Protestant faith, became a "traditional" Catholic and joined MHFM in 2005 in part because it was consistent with his beliefs that rejected  the Vatican II changes to the Catholic Church and did not recognize post-Vatican II Popes as valid. In 2007, Hoyle left MHFM and set up his own website condemning it as heretical.  In his lawsuit, Hoyle asserted that MHFM had misrepresented its historical connections to the Benedictine Order, which her relied on in choosing it. The court concluded:

... [E]ach of plaintiff’s claims is based on his assertion that the defendants misrepresented their status as Benedictine monks and the affiliation of MHFM with the Order of Saint Benedict.  Questions regarding the establishment of MHFM as a Benedictine community and its current identification as a “traditional” Catholic Benedictine monastery are matters of religious doctrine over which the court has no jurisdiction.  Moreover, plaintiff has failed to raise a genuine issue of material fact regarding the establishment of MHFM.

Today's Military's Gay Pride Event Criticized By Christian Chaplains' Group

As reported by God and Country blog, today the Pentagon is hosting, for the first time, an event celebrating LGBT Pride Month. (Background from AP).The publicity for the event stresses diversity as a great strength.  The Chaplain Alliance for Religious Liberty, a group made up primarily of retired military chaplains representing Christian chaplain endorsing organizations, last week issued a statement condemning the decision by the Department of Defense to sponsor the event, saying:

The details of how the military will celebrate have not been made public, but the Pentagon announced Friday that Defense Secretary Leon Panetta wants to honor the contributions of homosexual service members. Ironically, although DoD makes attempts to strengthen traditional families, it has never promoted a “heterosexual month” to honor the contributions of heterosexual members who make up at least 97 percent of the military.

Cert. Denied In Mt. Soledad Cross Case

The U.S. Supreme Court today denied certiorari in Mount Soledad Memorial Association v. Trunk (Docket No. 11-998) and the companion appeal in United States v. Trunk (Docket No. 11-1115) (Order List.) In the case, a 3-judge panel of the 9th Circuit held that the now federally-owned Mt. Soledad Memorial featuring a 43-foot high cross conveys a government message of endorsement of religion that violates the Establishment Clause. Subsequently the full 9th Circuit refused an en banc rehearing. However 5 judges, joined an opinion dissenting from the denial of en banc review. (See prior posting.) Justice Alito filed a statement explaining his reasons for going along with today's denial of review by the Supreme Court, saying in part:

The current petitions come to us in an interlocutory posture. The Court of Appeals remanded the case to the District Court to fashion an appropriate remedy, and, in doing so, the Court of Appeals emphasized that its decision “d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial].”.....  Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will be required to take, I agree with the Court’s decision to deny the petitions for certiorari.  

Today Is 50th Anniversary of Engle v. Vitale School Prayer Decision

Today is the 50th anniversary of the U.S. Supreme Court's decision in Engle v. Vitale (1962) which held unconstitutional under the Establishment Clause New York's requirement that a non-denominational prayer composed by the state Board of Regents be recited in public school classrooms at the beginning of each school day.  This was the first in a series of cases that barred school authorized prayer and Bible-reading in the public schools. Yesterday's Deseret News, marking the anniversary, reviews the impact of the Engle decision.