Court Issues Preliminary Injunction In Corporation's Challenge To ACA Contraceptive Coverage Mandate

Today in Newland v. Sebelius,(D CO, July 27, 2012), a Colorado federal district judge relied on the Religious Freedom Restoration Act in issuing a preliminary injunction against enforcing the contraceptive coverage mandate issued under the Affordable Care Act against a small private company. The lawsuit was brought by Hercules Industries, Inc., a small manufacturing company, and its Catholic officers and directors. Plaintiffs allege that the company maintains a self-insured group health plan for its employees "[a]s part of fulfilling their organizational mission and Catholic beliefs and commitments." To further strengthen its position, the company recently added provisions to its articles of incorporation specifying that its primary purposes are to be achieved by "following appropriate religious, ethical or moral standards," and allowing its board to prioritize "religious, ethical or moral standards" over profitability.

The court held that:

Because this case presents "questions going to the merits . . . so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation," I find it appropriate to enjoin the implementation of the preventive care coverage mandate as applied to Plaintiffs.

The court pointed out that among the questions of first impression posed by the case are:

Can a corporation exercise religion? Should a closely-held subchapter-s corporation owned and operated by a small group of individuals professing adherence to uniform religious beliefs be treated differently than a publicly held corporation owned and operated by a group of stakeholders with diverse religious beliefs? Is it possible to “pierce the veil” and disregard the corporate form in this context? What is the significance of the pass-through taxation applicable to subchapter-s corporations as it pertains to this analysis?

Nevertheless, the court concluded that it was unlikely that the government could show, as required by RFRA, that its interest in uniform application of the Affordable Care Act was a compelling interest or that it had used the least restrictive means to achieve that interest in this case.  The Becket Fund issued a press release announcing the decision, as did Alliance Defending Freedom.

Romney Moves Jerusalem Fund Raiser Further From End of Tisha b'Av

JTA reports that the Mitt Romney campaign has moved a $50,000 per person fund raiser he plans to hold in Jerusalem during his current trip overseas from Saturday night to Sunday morning.  The campaign had been criticized for scheduling the event for just after the end of Tisha b'Av, the Jewish fast day marking the destruction of the first and second Jewish Temples in Jerusalem. The event was originally scheduled for 9:30 p.m., an hour after the end of the holy day.

President Names 2 To Advisory Council on Faith-Based and Neighborhood Partnerships

The White House announced yesterday President Obama's intention to appoint two new members to the President’s Advisory Council on Faith-Based and Neighborhood Partnerships. The new appointees are: Maria T. Nagorski, Executive Director of the nonprofit organization Fair Chance which focuses on issues of child poverty; and Elder Steven E. Snow, Church Historian, Recorder, and Church History Department Executive Director for the Church of Jesus Christ of Latter-day Saints.

Pentagon Hosts Iftar Dinner

On Wednesday the Pentagon hosted its 13th annual Iftar dinner to mark the Muslim holy month of Ramadan.  According to the American Armed Forces Press Service, among the 120 guests were Defense Department officials; military officers from Iraq, Bangladesh, Jordan, Pakistan, Turkey and Bahrain; ambassadors from South Africa and Bahrain; and the two Muslim members of Congress. In his remarks (full text) to the dinner, Secretary of Defense Leon Panetta said in part:

We’re grateful to be able to host this Iftar Dinner at the Pentagon and share in one of the great traditions of the Muslim faith.

We’re also able to affirm one of the fundamental principles of our country – our ability to freely practice our chosen faith and to be able to worship our God wherever we are.

[Thanks to God and Country blog for the lead.]

New Poll Shows Most Americans Comfortable With Romney's Religion; Still Confusion Over Obama's Beliefs

Yesterday, the Pew Research Center released a new poll on religion and politics (full report). It finds that among the 60% of Americans that know Mitt Romney is a Mormon, 60% say they are comfortable with that while 19% say they are uncomfortable. Meanwhile, 17% of all those surveyed and 30% of Republicans think Barack Obama's religion is Muslim.

City To Redesign Logo To Remove Cross and Chapel

The Steubenville, Ohio Herald Star reports that Steubenville's City Council agreed Tuesday night to redesign the city's logo after a complaint (full text of letter) from the Freedom From Religion Foundation objecting to the depiction on the logo of Christ the King Chapel on the campus of Steubenville's Franciscan University-- including a Latin cross on top of the chapel.  According to yesterday's Herald Star, the logo was just unveiled in December.  Apparently the city planned to use the logo on city letterhead, signs, vehicles and on the floor of the courthouse. FFRF had argued:

Any claims of historical or cultural significance to the Latin cross on the Steubenville logo do not relieve the city of its constitutional obligations. The City of Steubenville must not endorse 'faith' and church. While we understand that Franciscan University is a part of the city, the city may not depict the university chapel and cross because to do so places the city's imprimatur behind Christianity.

The city's law director said that they will approach the original designer of the logo and ask him to replace the chapel on the logo with a silhouette of another campus building, such as the library or a dormitory. Designer Mark Nelson said they had already designed a version without the cross, but he does not understand why a silhouette of the chapel itself is objectionable.

6th Circuit: Undue Hardship Showing In Title VII Case Refers to Hardship On Employer, Not Employees

In Crider v. University of Tennessee, Knoxville, (6th Cir., July 23, 2012), a Seventh Day Adventist was fired from her position as one of the coordinators of the University of Tennessee's Programs Abroad when she refused to perform work-related tasks from sundown Friday to sundown Saturday.  Particularly at issue was her rotating weekends with two others to monitor the emergency cell phone which students abroad could call in case of emergency. In a 2-1 decision in a Title VII religious discrimination case, the U.S. 6th Circuit Court of Appeals reversed the district court's grant of summary judgement to the University. The majority held that Title VII requires reasonable accommodation of religious beliefs unless doing so would impose undue hardship on the employer's business.  Hardship on fellow employees who are asked to switch shifts is not enough unless this would create an employee morale problem that affects the employer's ability to operate its business. Genuine issues of fact remained for trial on the question of reasonable accommodation.  Judge McKeague dissented. [Thanks to Michael Masinter via Religionlaw for the lead.]

Ft. Hood Shooter Held In Contempt By Military Judge For Refusing To Shave Beard

According to YNN Austin, a military judge yesterday held accused Fort Hood mass shooter, Maj. Nidal Hasan, in contempt for refusing to shave his beard that he is wearing for religious reasons. The military judge previously ruled that Hasan's beard violates military grooming regulations and disrupts court proceedings. (See prior posting.)  Last month, the court excluded Hasan from the court room and relegated him to watching the hearings in his case on closed circuit television in a trailer outside the court house. (See prior posting.) Yesterday Military Judge Col. Gregory Gross fined Hasan $1000. Hasan continued to insist on keeping his beard, saying that shaving it would signify rejection of an important tenet of Islam.  The court suggested that it might order Hasan to be forcibly shaved once the important parts of his trial begin so Hasan can be in the court room.

Scottish Government Will Move Ahead With Same-Sex Marriage Law; Will Protect Conscience Rights

After conducting a public consultation last year, the government of Scotland announced yesterday that it intends to move ahead with legislation to permit same-sex marriage and religious ceremonies for civil partnerships.  However it will also add protections for freedom of speech and religion. SDGLN reports on these developments and reprints the full text of the Scottish Government's announcement. No religious body will be required to conduct same-sex marriages.  The Government will also seek an amendment to the UK Equality Act to assure protection for clergy who disagree with their religious organization's decision to perform same-sex marriages. Currently the Equality Act grants an exemption from equality requirements only where necessary to comply with the doctrine of a religious organization or to avoid conflict with the strongly held religious convictions of a significant number of the followers of the religion or belief. The Scottish government will also include provisions to protect the beliefs of teachers and parents in schools. The curriculum in Catholic schools will continue to be controlled by the Scottish Catholic Education Service.

Scientology Sea Org Members Did Not Show Trafficking Victims Protection Act Violations

In Headley v. Church of Scientology International, (9th Cir., July 24, 2012), the U.S. 9th Circuit Court of Appeals held that a husband and wife, both former members of the Church of Scientology's Sea Org, failed to show that the Church had forced them to provide labor in violation of the Trafficking Victims Protection Act. The court said:

The one adverse consequence the Headleys could have faced, had they taken any of their many opportunities before 2005 to leave the Sea Org, was to have been declared "suppressive persons" and thus potentially to have lost contact with family, friends, or each other. But that consequence is not "serious harm"—and warning of such a consequence is not a "threat"—under the Trafficking Victims Protection Act.

By deciding the case on statutory grounds, the appeals court did not have to pass on the correctness of the trial court's ruling that plaintiffs' claims of psychological coercion were barred by the ministerial exception doctrine. (See prior related posting.) Reuters reports on the decision.

New Report Released On Christian Right's Political Activities In Africa

Political Research Associates, a Massachusetts-based progressive think tank, yesterday released a new report titled Colonizing African Values: How the U.S. Christian Right is Transforming Sexual Politics in Africa. According to the Executive Summary:

This report investigates how key U.S. Christian conservatives of various backgrounds—Roman Catholics and Mormons, as well as right-leaning evangelicals—are expanding the U.S. Christian Right infrastructure on the African continent with new institutions and campaigns that are reshaping national political dynamics and even laws based on an American template. Within the past five years, the Roman Catholic Human Life International (HLI), the Pat Robertson-founded American Center for Law and Justice (ACLJ-USA), and Family Watch International (FWI), led by a Mormon, have launched or expanded their work in Africa dedicated to promoting their Christian Right worldview. A loose network of rightwing charismatic Christians called the Transformation movement joins them in fanning the flames of the culture wars over homosexuality and abortion by backing prominent African campaigners and political leaders.

LGBTQ Nation has more on the report.

Monsignor Gets 3 to 6 Year Sentence For Cover-Up of Priest Sexual Abuse

According to Reuters, Monsignor William Lynn, who was convicted in June (see prior posting) on one count of child endangerment for covering up sexual abuse by other priests was sentenced today to 3 to 6 years in prison.  Lynn served as the Philadelphia Archdiocese's chief investigator on clergy misconduct. He transferred priests to other parishes without disclosing the sex abuse charges that had been leveled against them. Lynn is the highest ranking U.S. Church official to be convicted of covering up clergy sexual misconduct.

Conservative Congressman Criticizes Bachmann's Muslim Brotherhood Claims

Think Progress reported yesterday on remarks by conservative Wisconsin Congressman Jim Sensenbrenner strongly defending the 1st Amendment's religious freedom protections as well as the constitutional ban on religious tests for federal office.  The remarks came in Sensenbrenner's rejection of charges by Rep. Michelle Bachmann, a member of the House Intelligence Committee, that the Muslim Brotherhood has infiltrated government policies and activities.  Bachmann last month sent a letters to the inspectors general of 5 federal agencies demanding that they investigate.(Links to full text of each letter.)  When challenged by Rep. Kieth Ellison, Bachmann responed with a 16-page letter (full text) particularly singling out Huma Abedin, a top aide to Secretary of State Hillary Clinton. Last week, Sen. John McCain, in a speech on the floor of the Sentate (full text) strongly defended Abedin, saying: "When anyone, not least a member of Congress, launches specious and degrading attacks against fellow Americans on the basis of nothing more than fear of who they are and ignorance of what they stand for, it defames the spirit of our nation, and we all grow poorer because of it."

7th Circuit En Banc: High School Graduation In Church Violated Establishment Clause

In a 7-3 en banc decision yesterday in Doe 3 v. Elmbrook School District, (7th Cir., July 23, 2012), the U.S. 7th Circuit Court of Appeals held that two Wisconsin high schools violated the Establishment Clause when they regularly held their graduation ceremonies in the sanctuary of a non-denominational evangelical Christian church. Judge Flaum, writing for the majority and attempting to limit the decision to the facts of this case, said that "an unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the  proselytizing environment of Elmbrook Church." He explained:

high school students and their younger siblings were exposed to graduation ceremonies that put a spiritual capstone on an otherwise-secular education. Literally and figuratively towering over the graduation proceedings in the church’s sanctuary space was a 15- to 20-foot tall Latin cross, the preeminent symbol of Christianity....  [T]he sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state....

[I]f constitutional doctrine teaches that a school cannot create a pervasively religious environment in the classroom... it appears overly formalistic to allow a school to engage in identical practices when it acts through a short-term lessee.

Judge Hamilton joined the majority opinion but also wrote separately to respond further to the dissents.

Judge Ripple wrote a dissent, joined by Chief Judge Easterbrook and Judge Posner.  He said in part:

To the reasonable attendee ... it was obvious that the public high school that educated the graduates does not own the church and did not place in the church the various displays and iconography that disturb the plaintiffs.... [I]it would be totally unreasonable for any student to attribute to the District any endorsement of the message of the iconography; it belongs to—and they know it belongs to—someone else. It symbolizes the landlord’s view, not the District’s view....

At bottom, today’s holding requires that the state assume the affirmative obligation of avoiding any association with a “pervasively religious” organization when that association would require an individual to be exposed—even incidentally and passively—to expressions of that organization’s “religiosity.” Should this principle ... become imbedded in our law, it will undermine significantly the principles that presently form the foundations of our Establishment Clause jurisprudence. Those religions that toe the line and conform to the profile of a “safe religion” will enjoy full acceptance by the civil polity. Those who remain “pervasively religious” will find themselves in the shadows of the American journey.

Judges Easterbrook and Posner each wrote a separate dissent as well.  Judge Posner ended his dissent as follows:

Separation rulings by the Supreme Court seem only to stimulate religious fervor. Religions thrive on persecution, real or imagined. Where would Christianity be without its martyrs? The real winner of this case is likely to be—Elmbrook Church.

Americans United issued a release announcing the decision. [Thanks to Scott Mange for the lead.] 

Recent Articles and Forthcoming Books of Interest

From SSRN:

• Benjamin L. Berger, The Aesthetics of Religious Freedom, (Varieties of Religious Establishment, Winnifred Sullivan and Lori Beaman, eds., Ashgate, Forthcoming.)
• Shadi Mokhtari, Green Movement, Clerical, Activist and Public Responses to Heightened Repression Since the 2009 Presidential Elections in Iran: A Survey and Assessment of Implications for Political Change, (USIP's Iran Internal Politics Study Group, Forthcoming).

From SmartCILP and elsewhere:

• Catholic Social Science Review, Vol. XVI (2011), includes a symposium and numerous articles on Caritas in Veritate. (Full text of all articles.)
• Raj Bahla, Poverty, Islamist Extremism, and the Debacle of Doha Round Counter- Terrorism: Part Three of a Trilogy -- Trade Remedies and Facilitation, 40 Denver Journal of International Law & Policy 237-320 (2011-2012).

Forthcoming books:

• Geraldine Fagan, Believing in Russia - Religious Policy after Communism, (Routledge, Oct. 2012).
• Kathleen Holscher, Religious Lessons: Catholic Sisters and the Captured Schools Crisis in New Mexico, (Oxford Univ. Press, Aug. 2012).

Muslim Olympic Athletes Face Issue of Ramadan Fast

CNN reported yesterday on the dilemma facing Muslim athletes competing in the London Olympics starting this week. It is still Ramadan, and they must decide whether or not they will eat and drink during daylight hours, or instead observe the traditional dawn to dusk fast. In London, this would make it a 17-hour fast each day.  Sports nutritionist Hala Barghout says that it is physically impossible for the athletes to eat the amount of food they need in the 7 hours that remain each day.  But Ahmed Abdul Aziz Al Haddad, grand mufti of Dubai, says:

Playing sports is not a requirement in Islam. Players become athletes by choice. This optional activity, therefore, does not allow athletes to break their fast.... They must be ambassadors of their faith..... 

He says that athletes may eat or drink if fasting threatens their health,  "but to immediately break your fast without being hungry or thirsty is the same as submitting to your cravings and lusts, and not putting God's desire before your own."

Muslim authorities hold varying opinions on the issue. British Olympic rower Moe Sbihi, after discussing the issue with his imam, says he will not fast during the games.  Instead he will observe a fast later, and will feed 1,800 hungry people in Morocco after the Olympics as compensation for not fasting during Ramadan.

English Court Applies Ecclesiastical Abstention Doctrine To Dispute Over Sikh Leadership

In Khaira & Ors v Shergill & Ors, (EWCA, July 17, 2012), the England and Wales Court of Appeal held that a dispute over who has the power to name trustees of two Sikh Guwardas is not justiciable because it would require the court to resolve a dispute grounded in religious faith, doctrine and practice. At issue are trust deeds that give the express power to remove and appoint trustees of the Guwardas (one in Birmingham and the other in High Wycomb) to the First Holy Saint and his successors.  The parties to the litigation disagree over whether whether the 9th claimant, Sant Baba Jeet Singh Ji Maharaj, is "the Third Holy Saint" and whether he is "successor" (via the Second Holy Saint) to the First Holy Saint.  In an opinion by Lord Justice Mummery (with which the two other judges agreed), the court said:

... [C]ourts abstain from adjudicating on the truth, merits or sincerity of differences in religious doctrine or belief and on the correctness or accuracy of religious practice, custom or tradition. The courts also exercise caution in adjudicating on the fitness or otherwise of a particular individual to carry out the spiritual duties of a religious office, although there are some employment rights cases in which jurisdiction has been exercised on the basis of the existence of a contract of employment and of statutory rights not to be unfairly dismissed or discriminated against on a prohibited ground....

... [T]his court should put a halt to this case now. It is being asked to pronounce on a matter on which it cannot speak and should not pretend to speak with authority. The court risks diminishing respect for its own authority, as happened, for example, to the 19th century jurisdiction of the Judicial Committee of the Privy Council, when, in a more religious age, it gave appellate decisions (often ignored) in its ecclesiastical jurisdiction on points of the interpretation of scripture, doctrine, sacraments, ritual and vestments that arose in religious controversies in the established church. Those unfortunate and rather pointless battles in the courts have been rightly described as a cross-fire of jurisdictions that were a gold mine for barristers.

UK Human Rights Blog discusses the decision.

Hasidic Retailers In Williamsburg Seek To Impose Dress Code On Customers

The New York Post today reports on the growing trend in the Williamsburg section of Brooklyn for retail stores owned by Hasidic Jews to try to impose a dress code on all their customers.  Stores, including hardware, clothing and electronic retailers, have posted signs in English and Spanish reading "No Shorts, No Barefoot, No Sleeveless, No Low Cut Neckline Allowed in the Store."  Williamsburg is the home to many Hasidic Jews, but also is a center for the arts and music that the Post describes as a "hipster haven." (See Free Williamsburg blog.) An Orthodox resident of Williamsburg says: "We’re not concerned about the way women dress in Manhattan — but we are concerned with bringing 42nd Street to this neighborhood." Cardozo Law Professor Marci Hamilton says: "It’s further evidence of this era’s move toward Balkanization in the United States." The signs do not appear to violate any state or federal statutes.

Recent Prisoner Free Exercise Cases

In Chavez v. Lewis, 2012 U.S. Dist. LEXIS 97753 (ND CA, July 13, 2012), a California federal district court denied the habeas corpus petition of a state prisoner who claims that his continued placement in the prison's security housing unit violates his 1st Amendment free exercise rights as well as his rights under RLUIPA. Authorities claimed that petitioner had two pictures containing the Mactlactlomei symbol-- which they say was evidence of gang affiliation and petitioner claims was a religious symbol.

In De'Lonta v. Johnson, 2012 U.S. Dist. LEXIS 98705 (WD VA, July 17, 2012), a Virginia federal district court denied on various grounds free exercise and RLUIPA claims by a female inmate who was a member of the Assemblies of Yahweh affiliation of Judaism who was seeking kosher meals, a head scarf and performance of a candle lighting ceremony.

In Wright v. Godinez, 2012 U.S. Dist. LEXIS 98950 (ND IL, July 16, 2012), an Illinois federal district court allowed an inmate to move ahead with his complaint that he was denied a prayer cap, prayer rug, and religious oil that he needed in order to practice his religion.

In Yisrael v. Beasley, 2012 U.S. Dist. LEXIS 98899 (ED NC, July 17, 2012), a North Carolina federal district court permitted an inmate who practiced the Hebrew Israelite religion to move ahead with his claim that his right to wear a tallit and kippah was improperly restricted. However the court dismissed his claims regarding access to kosher food and recognition of the Hebrew Israelite religion by prison officials because those demands were now largely met by prison authorities.

New York MTA Ban On Ads That Demean Religious Groups Violates 1st Amendment

In American Freedom Defense Initiative v. Metropolitan Transit Authority, (SD NY, July 20, 2012), a New York federal district court held unconstitutional the provision in the standards for the sale of ad space on New York City buses that prohibits ads which demean a religious group. AFDI wanted to buy ad space on the tails of 318 NYCTA buses to run an ad reading: "In Any War Between the Civilized Man and the Savage, Support the Civilized Man. Support Israel. Defeat Jihad."  The court held that advertising space on exterior of buses is a designated public forum in which content based restrictions are subject to strict scrutiny. The MTA policy at issue which precludes ads that demean an individual or group on account of "race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation" was seen to be content based: "as presently worded, [it] overtly differentiates among speech based on the target of the speech's abuse and invective." The New York Times reports on the decision. [Thanks to Steven H Sholk for the lead and to Fairness blog for posting the decision.]

11th Circuit: Limits On Carrying Guns In House of Worship Do Not Violate Free Exercise Rights

In GeorgiaCarry.org, Inc. v. State of Georgia, (11th Cir., July 20, 2012), the U.S. 11th Circuit Court of Appeals rejected constitutional challenges to a Georgia law restricting the the right to freely carry handguns, knives or long guns in 8 specific locations, including any place of worship.  After holding that plaintiffs who hold weapons carry licenses and regularly attend church services have standing to challenge the law, the court held that the law violates neither the free exercise clause of the 1st Amendment nor the right to bear arms protected by the 2nd Amendment. It rejected plaintiff's free exercise complaint because plaintiff failed to show how the law burdens a sincerely held religious belief.  It is not enough to merely allege that the law prohibits activities in a place of worship that are generally permitted elsewhere throughout the state.  The court rejected plaintiffs' 2nd Amendment claim because the law merely vindicates the right of a private property owner-- here a place of worship-- to decide whether to allow firearms on its premises. The Atlanta Journal Constitution reports on the decision.

President Issues Ramadan Greetings

President Obama yesterday released a statement (full text) sending Ramadan wishes from himself and Michelle to Muslim Americans and Muslims around the world. He said in part:

This year, Ramadan holds special meaning for those citizens in the Middle East and North Africa who are courageously achieving democracy and self-determination and for those who are still struggling to achieve their universal rights. The United States continues to stand with those who seek the chance to decide their own destiny, to live free from fear and violence, and to practice their faith freely. Here in the United States, Ramadan reminds us that Islam is part of the fabric of our Nation, and that—from public service to business, from healthcare and science to the arts—Muslim Americans help strengthen our country and enrich our lives.

The statement also indicated that again this year the White House will host an iftar dinner.

Appeals Court: Amish Man Failed To Show Sincere Religious Objection To Zoning Permit

In County of Jackson v. Borntreger, (WI App., July 19, 2012), a Wisconsin state appellate court, in a civil forfeiture action, rejected a claim by defendant, a member of the Amish faith, that applying for a county zoning permit before constructing a saw mill on his property would have unconstitutionally violated his religious freedom. The court concluded that neither defendant nor others who spoke on his behalf in court established that he held a sincere religious belief that was burdened by enforcement of the zoning law. The court said:

No oral or written religion tradition is cited, beyond the general reference to “their [Amish] religion.” No specific religious rule or tenet is described. In effect, Douglas [who spoke for defendant] generically applies the word "religion" to the same idea already expressed by Borntreger about his preference for a less complicated application process, without explaining what religious tenet or tradition would be burdened. Beliefs in general concepts of non-conformity or simplicity, without further explanation or specificity, are simply too general and vague to support a finding that any particular aspect of enforcement of the zoning ordinance burdens a sincerely held religious belief.

Yesterday's Winona Daily News reports on the decision.

Another Court Tosses ACA Contraceptive Coverage Mandate Suit On Ripeness Grounds

For the second time in two days (see prior posting), a federal district court has dismissed on justiciability grounds a lawsuit challenging the mandate under the Affordable Care Act requiring most health insurance policies to cover contraceptive services. In Belmont Abbey College v. Sebelius, (D DC, July 18, 2012), the federal district court for the District of Columbia held that a Benedictine College could not proceed at this time with its lawsuit claiming that the mandate violates its strongly held religious beliefs against sponsoring any health insurance plan that pays for contraception, sterilization or abortion. The court held that while Belmont Abbey College sufficiently alleged standing, the case should be dismissed on ripeness grounds. It said in part:

[T]he Court has before it a challenge to final regulations that Defendants have promised to amend.... The Court thus concludes ... that the Departments’ position on the policy at issue remains indeterminate..... The rulemaking process is still in its early stages, and the contents of the final amendment have not yet been decided. It would thus be premature to find that the amendment will not adequately address Plaintiff’s concerns....

Life News reports on the decision.

Russian Mufti Injured, Aide Killed, In Attacks; Motives Unclear

Radio Free Europe reports that in the Russian republic of Tartarstan on Wednesday, the government-backed top Islamic leader, mufti Ildus Faizov, was injured when unknown assailants blew up his car in the capital of Kazan.  In a separate incident, the mufti's deputy, Valilulla Yakupov, was shot and killed near his home in Kazan. No one has claimed responsibility for the attacks that took place in the mainly Muslim republic just before the start of Ramadan. Interfax is carrying various theories about the attacks. One article suggests that the attack on Yakupov, an historian who founded Russia's first Islamic publishing house, was in retaliation for his opposition to fundamentalist Wahhabism which he saw as a threat to traditional Islam. Another article suggests that the mufti was attacked because Tartarstan's Muslims were unhappy with the his failure to carry out his promises to lower the cost of hajj tours after he put the sale of all hajj tours under his personal control. The Russian Investigative Committee and Tatar officials say that investigations of the attacks are under way.

German Bundestag Passes Resolution Urging Legalization of Circumcision

The Bundestag, the lower house of Germany's parliament, yesterday passed a resolution urging the government to present a draft law this fall when parliament resumes to guarantee "that the circumcision of boys, carried out with medical expertise and without unnecessary pain, is permitted." The resolution said that: "Jewish and Muslim religious life must continue to be possible in Germany. Circumcision has a central religious significance for Jews and Muslims."

As reported by the Global Post and The Forward, the resolution is designed to overrule a controversial decision last month by a court in Cologne that found circumcision of minors unconstitutional. (See prior posting.) The resolution was filed jointly by Chancellor Angela Merkel's Christian Democratic Union, the Social Democratic Party and the Free Democratic Party. It was opposed only by members of the socialist Left Party who urged that only a symbolic circumcision be allowed on minors, to be completed in adulthood on request. The resolution was hurried through in a special session of the Bundestag called to vote on economic aid for Spain.

School Board Settles Suit, Agreeing Not To Hold Graduation In Church

The Enfield, Connecticut School Board voted 6-3 on Wednesday night to settle a lawsuit brought against it by the ACLU and Americans United challenging its holding graduation exercises in a Christian church. (See prior posting.) The Hartford Courant reports that under the settlement, the school board agrees not to hold future graduations at First Cathedral and will pay an undisclosed portion of plaintiffs' $1 million in legal fees. The school board's insurer will cover up to $470,000 of the settlement. Board member Jennifer Rancourt, who voted in favor of the settlement said: "If it is something that offends a few people, then we have to respect that." Board member Kevin Fealy, one of the 3 who voted against the settlement, said: "Deep pockets with nothing to lose have the opportunity to push us into a corner."

Canadian Tribunal Finds Christian B&B Owners Violated Human Rights Code By Cancelling Reservation For Gay Couple

In Eadie and Thomas v. Riverbend Bed and Breakfast, (BCHRT, July 17, 2012), the British Columbia Human Rights Tribunal held that a bed and breakfast in a small Canadian town, and its owners who are members of the Mennonite Brethren Church, violated the sexual orientation discrimination provisions of the  B.C. Human Rights Code when they cancelled a room reservation after learning that it had been made by a same-sex couple.  The Tribunal held that it lacks jurisdiction to determine whether the Human Rights Code conflicts with the freedom of religion provisions of Canada's Charter of Rights and Freedoms. That issue must be presented to a court.  Instead, the Tribunal is limited to determining whether respondents had a "bona fide and reasonable justification" to discriminate.  The Tribunal Member hearing the case wrote:

I accept that the Molnars [the B&B owners] hold a sincere, personal and core religious belief that marriage is between a man and a woman and that sex outside of such a marriage,including same-sex sexual relations, is a sin. I also accept that the Molnars sincerely believe that to allow a same-sex couple to stay in a single bed in their home would harm their relationship to their Lord, and that they would not rent a room in their home for a purpose that conflicted with, or was contrary to, their personal religious beliefs....

She concluded, however, that to be acceptable, a justification had to be rationally related to the function or purpose of the bed and breakfast.  Here the policy of restricting rooms with one bed to heterosexual couples was rationally related to the owners' religious beliefs, but not to the B&B's purpose of offering temporary accommodations to the general public. The Tribunal issued a cease and desist order and awarded damages, including $1500 to each of the complainants for injury to dignity, feelings and self-respect.

The Province, reporting on the decision, says that the Molnars stopped operating their bed and breakfast when the complaint was filed against them, and they do not intend to reopen. [Thanks to Alliance Alert for the lead.]

TRO Obtained By Justice Department Expedites Occupancy Permit For Murfreesboro Mosque In Time For Ramadan

For Muslims, Ramadan begins at sundown this evening. Yesterday, a Tennessee federal district court judge issued a 14-day temporary restraining order (full text) in United States v. Rutherford County, Tennessee, (MD TN, July 18, 2012) requiring county officials to expedite the issuance of an occupancy permit for a controversial mosque in Murfreesboro (TN). The TRO was issued on the same day the lawsuit was filed. The Islamic Center's Memorandum of Law in support of its application for a TRO in parallel litigation outlines the lengthy legal battle that has been waged over the mosque. In 2011, the Tennessee Chancery Court dismissed challenges to the Rutherford County Regional Planning Commission's approval of building plans for the mosque, but allowed plaintiffs to move ahead with their claim that the county violated the Open Meetings Act when it publicized the Planning Commission meeting only in the Murfreesboro Post. That conclusion was based on the perceived importance of the matter to be discussed at the meeting. (See prior posting.) Five days later the state court refused to require a halt to ongoing construction of the mosque, but barred the county from issuing an occupancy permit. Yesterday the U.S. Department of Justice filed suit (full text of complaint) in federal district court alleging that Rutherford County, in complying with the Chancery Court's order, violated the Religious Land Use and Institutionalized Persons Act. (DOJ press release). In issuing the TRO, the court said that the heightened notice requirement imposed by the state court's interpretation of the Open Meetings Act substantially burdens the Islamic Center's free exercise of religion without a compelling governmental interest.

UPDATE: As reported by the Christian Science Monitor, the mosque construction supervisor says the the building will not be ready for occupancy for about two more weeks. Members hope to be in the building before the end of Ramadan.

Another Lawsuit Filed Challenging Affordable Care Act Contraceptive Coverage Mandate

Yesterday yet another lawsuit was filed challenging on religious liberty and other grounds the mandate issued under the Affordable Care Act requiring health insurance policies to cover contraceptive services (as well as education and counseling of women with reproductive capacity).  This time the suit was filed by Wheaton College, an evangelical Christian liberal arts college in Illinois. The suit was filed in federal district court in Washington, D.C. where a separate suit brought by Catholic University of America and four other Catholic institutions is already pending. In announcing the filing of yesterday's lawsuit-- the 24th separate suit challenging the mandate (list of lawsuits)-- the Becket Fund said that this "marks the first-ever partnership between Catholic and evangelical institutions to oppose the same regulation in the same court." The complaint (full text) in Wheaton College v. Sebelius, (D DC, filed 7/18/2012) alleges in part:

2... Wheaton’s religious beliefs forbid it from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion.....  3. With full knowledge of these beliefs, the government issued an administrative rule... that runs roughshod over Wheaton’s religious beliefs... by forcing it to provide health insurance coverage for abortifacient drugs and related education and counseling.

4. The government’s Mandate unconstitutionally coerces Wheaton to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also forces Wheaton to facilitate government-dictated speech that is incompatible with its own speech and religious teachings. Having to pay a penalty to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American, unprecedented, and flagrantly unconstitutional.

Christianity Today reports on yesterday's lawsuit. [Thanks to Lael Weinberger for the lead.]

3rd Circuit: Religious Accommodation For Bus Driver Would Involve Undue Hardship On Employer

In Fouche v. NJ Transit, (3d Cir., July 16, 2012), the U.S. 3rd Circuit Court of Appeals held that accommodating a bus driver's need for religious reasons to not work on Sundays would have placed an undue hardship on New Jersey Transit. It would have required the transit authority to shift some Sunday driving to other drivers in breach of the seniority provision of the union's collective bargaining agreement. The court said it was impressed by the agency's willingness to employ the driver on a part-time basis to make it possible for him to avoid Sunday driving. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

Town Reacts To Group's Complaint About Cross On Public Property

The Indianapolis Star reported Tuesday on the reaction of residents of Dugger, Indiana to the complaint filed by Americans United with the Town Council over a cross put up two years ago on a piece of land owned by the town located near the "Welcome to Duggar" sign.  The 26-foot tall cross, with "Jesus Saves" written on it, was put up by a 72-year old retired welder with the approval of Town Council. Now however, to the consternation of many residents, Council president Dwight Nielson says the town cannot afford to fight this in court, and would likely lose anyway. He is considering either moving the cross to private property or selling the land on which the cross stands to Faith Community Church that owns the cross. Charles Hay, who originally proposed to the Town Council that it allow the cross on public property said of the cross: "It ain’t hurting nobody. If you’re not for it, don’t look at it."

Population Flees Northern Mali As Strict Islamic Law Is Imposed

A front-page article in today's New York Times reports on the thousands fleeing from the imposition of strict Islamic law in the northern section of the African country of Mali:

The vast desert expanse of northern Mali has become a magnet for Islamic extremists who have tightened their grip on Timbuktu and other far-flung towns, imposing a strict form of justice that is prompting tens of thousands of people to flee what some are likening to an African Afghanistan.

Rattled recent arrivals at a 92,000-person makeshift camp here at Mauritania’s remote eastern edge describe an influx of jihadists — some homegrown and others possibly from afar — intent on imposing an Islam of lash and gun on Malian Muslims who have long coexisted with Western tourists in the fabled town of Timbuktu.

Ministerial Exception Inapplicable To FLSA Suit By Mashgiach Against Catering Firm

Altman v. Sterling Caterers, (SD FL, July 17, 2012), is a suit alleging violations of the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) brought by a masgiach (kosher standards supervisor) against the catering firm for whom he works. Plaintiff Mauricio Altman supervises the food served by the catering company at the Jewish Community Center in Davie, Florida. The court, in a decision by a federal magistrate judge, rejected defendants' claim that the lawsuit should be dismissed under the ministerial exemption (ministerial exception) doctrine. It held that without deciding whether or not the ministerial exception applies to suits under the FLSA, the defendant, a commercial catering firm, would not qualify for the exemption because it is not a religious institution:

As a for-profit catering company providing both kosher and non-kosher food, Sterling is more akin to a restaurant serving special food to customers than a religious institution.

Challenge To ACA Contraceptive Services Mandate Dismissed On Standing and Ripeness Grounds

In State of Nebraska v. United States Department of Health and Human Services, (D NE, July 17, 2012), a Nebraska federal district court dismissed on standing and ripeness grounds a lawsuit by 7 states, 3 Catholic organizations and 2 individuals challenging the mandate issued under the Affordable Care Act that health insurance policies (with limited exceptions) cover contraceptive services. (See prior posting.) Plaintiffs claimed that the mandate will coerce religious institutions and organizations to subsidize contraception, abortifacients, sterilization, and related services in violation of their religious beliefs. They also alleged that state budgetary stability will be threatened if religious organization employers stop providing health insurance in order to avoid the mandate.

The court held that the 3 Catholic organizational plaintiffs as well as the 2 individuals lack standing because their health plans are grandfathered and thus not covered by the mandate. Also it was not shown that the employers of the individual plaintiffs do not qualify for the narrow religious organization exemption from the mandate. The court held that the states' theory of standing "is based on layers of conjecture." The complaint:

merely offers guesses about how independent actors will respond to the Rule and speculation that these responses could cause people to qualify for, and obtain, state benefits that they would not otherwise seek, which will then strain the States’s budgets. This is not sufficient to establish standing.

The court also held that the claims are not ripe:

although the Rule that lies at the heart of the plaintiffs’ complaint establishes a definitive, final definition of "religious employer," ... [it] is currently undergoing a process of amendment to accommodate these organizations. The plaintiffs face no direct and immediate harm, and one can only speculate whether the plaintiffs will ever feel any effects from the Rule when the temporary enforcement safe harbor terminates....

AP reporting on the decision quotes Nebraska Attorney General Jon Bruning's reaction:

Today's decision completely disregards the federal government's continued shell game when it comes to this rule. Essentially, this decision asks millions of Americans to watch and wait for their religious liberties to be violated.

Israel's Coalition Government Fragments Over Law To Draft Ultra-Orthodox Yeshiva Students

In Israel yesterday, the Kadima Party withdrew from Prime Minister Benjamin Netanyahu's coalition government after only 73 days when negotiators were unable to reach a compromise on a new law to provide for the drafting of haredi (ultra-Orthodox) Jews into the Israeli military. The withdrawal of the 28 Kadima members of the Knesset from the coalition left Netanyahu with a narrow majority in the 120-seat legislative body. As reported by the Jerusalem Post and JTA, Prime Minister Netanyahu had proposed a law that would have required half of the haredi men to enlist in the military at age 18-23, while the other half would have performed civilian service at ages 23-26. Kadima leader Shaul Mofaz said that this did not go far enough toward the concept of equal service by all. The current Tal Law that grants draft deferrals to most haredi yeshiva students was struck down by the Israeli Supreme Court in February. (See prior posting.) If the Knesset does not pass a new law by August 1, the Defense Ministry will have authority to draft all yeshiva students. Defense Minister Ehud Barak said his ministry would increase the number of yeshiva students who are drafted, but would not conscript all haredi.

Faith-Based Recovery Shelter Loses RLUIPA Challenge To Zoning and Fire Code Enforcement

In Affordable Recovery Housing v. City of Blue Island, (ND IL, July 13, 2012), an Illinois federal district court denied a faith-based recovery and housing facility a preliminary injunction it sought to prevent enforcement against it of Blue Island, Illinois' zoning and fire codes.  Plaintiff claimed that the city's enforcement activity violated the federal Religious Land Use and Institutionalized Persons Act and Illinois' Religious Freedom Restoration Act. The court held, however, that neither the requirement to obtain a special use permit to operate the extensive residential and training facility in an area zoned for residential usage, nor the requirement to install a sprinkler system, imposed a substantial burden on plaintiff.

Justice Department Files Brief In Support of Native American Inmates' Challenge To No Tobacco Rule

As reported by AP, the U.S. Department of Justice yesterday filed a brief in support of Native American inmates who are challenging South Dakota's ban on their use of tobacco in religious ceremonies. The government's brief (full text), captioned "Statement of Interest of the United States," in Native American Council of Tribes v. Weber, (D SD, filed 7/16/2012), contends that the ban violates inmates' rights protected by the Religious Land Use and Institutionalized Persons Act.  The government argues:

Defendants’ argument that plaintiffs are not substantially burdened by the tobacco ban is, in actuality, a request for a judicial determination of the importance and centrality of tobacco use to the plaintiffs’ religious practice. This determination, however, is explicitly forbidden by RLUIPA and relevant case law, and this court should decline to undertake such a task.

RFRA Challenge By Native Americans To Solar Project Rejected

In La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. U.S. Department of the Interior, 2012 U.S. Dist. LEXIS 97759 (CD CA, July 13, 2012), a California federal district court rejected a claim by a Native American group that a solar energy generation project on federal land approved by the government will substantially burden their religious exercise in violation of the Religious Freedom Restoration Act. According to the court:

Alleging that the Project impedes Plaintiff's access to a religious site [the Salt Song Trails] is simply not enough to suggest that the Plaintiffs are deprived of the kind of benefit protected by RFRA....Neither do Plaintiffs demonstrate how the Project forces them to act contrary to their religious beliefs....

Early Cert. Petition Filed In Another DOMA Case

In an unusual tactical move announced yesterday, a petition for certiorari was filed with the U.S. Supreme Court in Windsor v. United States even though the case has not yet been decided by the Second Circuit where an appeal is pending.  In the case, a New York federal district court held that the Defense of Marriage Act is unconstitutional. (See prior posting.) At issue is whether the federal government must recognize the unlimited estate tax marital deduction in the case of the death of a same-sex spouse. The lesbian couple involved had been legally married in Canada. The ACLU explained its reasoning in petitioning on behalf of the parties that prevailed at trial before the government's appeal has been decided:

At this point petitions for Supreme Court review have been filed in two other DOMA cases – GLAD’s Gill v. OPM case, which has been decided by the First Circuit, and Lambda Legal’s Golinski v. OPM case, which, like Windsor v. United States, doesn’t have an appeals court decision yet.

The Court will likely decide the constitutionality of DOMA this coming term, using one or more of these cases as vehicles for addressing the issue. We filed because we believe that Edie [Windsor's] story is a strong addition to the striking collection of plaintiffs in the Gill case and to Karen Golinski’s story as well. Now the Court has three cases, offering a variety of harms, to choose from.

[Thanks to Alliance Alert for the lead.] 

7th Day Adventists Challenge Alabama City's License Requirement For Door-to-Door Solicitaitons

The Birmingham (AL) News reported yesterday that the South Central Conference of the Seventh Day Adventist Church has filed a federal lawsuit against the city of Alabaster, Alabama challenging the constitutionality of its ordinances governing door-to-door pamphleteering and solicitation.  The suit was filed after a member of the Church's Summer Student Missionary Program was ticketed for failing to register and pay a license fee under the city's business license permit and solicitation ordinances.  The Church contends that the ordinances impose an unconstitutional prior restraint on speech. The solicitation permit ordinance requires review by a city-council appointed committee, with the potential for a public hearing. The court has set a hearing for Wednesday on plaintiffs' motion for a temporary injunction barring enforcement of the ordinances.

Egyptian Christians Boycott Talks With Clinton Claiming U.S. Favors Islamists

Ahram and Digital Journal both report that in Egypt, representatives of the Coptic Orthodox Church as well as representatives of Egypt's Evangelical Church refused an invitation to meet with U.S. Secretary of State Hillary Clinton yesterday. A number of Christian politicians also declined to meet with her.  They all believe that the United States favors Islamist parties over secular and liberal forces and is interfering in internal Egyptian affairs. A U.S. spokesman, however, said that Clinton "wanted, in very, very clear terms, particularly with the Christian group this morning, to dispel that notion and to make clear that only Egyptians can choose their leaders, that we have not supported any candidate, any party, and we will not."

Haiti's New Constutition Eliminates Prior Protection For Voodoo Practitioners

As reported by Reuters last month, on June 19 Haiti's President Michel Joseph Martelly finally published the amended version of the country's Constitution that that had been approved by Haiti's Parliament in May 2011.  The delay was caused by disputes over whether the version originally sent to the President for publication was accurate. Haiti reverted to its 1987 Constitution while a correct version was being created.  The publication last month puts the new amendments into effect. The most widely publicized amendments relate to dual citizenship, a new electoral council and greater independence for the judiciary.  However Haiti Libre reported last week that a less-publicized amendment may have the effect of reducing protections for practitioners of voodoo.  A 1935 Haitian law-- Decree-Law of 5 September 1935 on superstitious beliefs-- outlawed ceremonies and rituals involving offerings to "alleged deities," making believe by occult means that it is possible to cure individuals or change their wealth, and possessing cabalistic objects used to exploit the public's gullibility or naivety. Section 297 of Haiti's 1987 Constitution repealed this Decree-Law, along with certain others that were seen as "arbitrarily limiting the basic rights and freedoms of citizens." The new constitutional amendments that took effect last month in turn abrogate Section 297 of the 1987 Constitution. Priestess Euvonie Auguste, Head of the National Confederation of voodoo in Haiti, says that now vodoo practitioners will need to use their own means to protect themselves from any attacks.

UPDATE: A government spokesman says that voodoo practitioners' concerns are misplaced. He says that a 2003 Presidential decree recognized voodoo as a religion, and that the 1935 decree was never promulgated and thus never became law. (Haiti Libre 7/23/12).

Recent Articles of Interest

From SSRN:

• Moamen Gouda and Sang-Min Park, Religious Loyalty and Acceptance of Corruption, (January 29, 2012).
• Zvi H. Triger, Freedom from Religion in Israel: Civil Marriage and Non-Marital Cohabitation of Israeli Jews Go to the Rabbinical Court, (Israel Studies Review, 2013).
• Munir Ahmad Mughal, Judicial Education and Training: Importance in Islam, (July 8, 2012).
• Konstantinos Tsitselikis, Aspects of Legal Communitarianism in Greece: between Millet and Citizenship, (Oñati Socio-Legal Series, Forthcoming).
• Richard F. Storrow, Religion, Feminism and Abortion: The Regulation of Assisted Reproduction in Two Catholic Countries, (Rutgers Law Journal, Vol. 42, No. 3, 2011).

From SmartCILP and elsewhere

• Michale P. Mosher and Ryan K. Oberly, A Gift Not So Simple-- Tax Issues Associated With 'Love Offerings', Taxation of Exempts, July/Aug. 2012, pg. 28.
• Margaret F. Brinig and Nicole Stelle Garnett, Catholic Schools and Broken Windows, 9 Journal of Empirical Legal Studies 347-367 (2012).
• Marie A. Failinger, Finding a Voice of Challenge: The State Responds to Religious Women and Their Communities, 21 Southern California Review of Law & Social Justice 137-206 (2012).
• A Survey of Religious Freedom for Individuals and Faith-Based Institutions. Articles by Erik W. Stanley, Michael Stokes Paulsen, Wesley J. Campbell, Stanley W. Carlson-Thies and Francis J. Manion. 24 Regent University Law Review 237-402 (2011-2012).
• Citizenship and Civility in a Divided Democracy: Political, Religious, and Legal Concerns. Introduction by Mark L. Jones; articles by Eugene Garver, David Lyons, Jeremy Waldron, Marianne Constable, Steven D. Smith and Jack L. Sammons; response by David P. Gushee. 63 Mercer Law Review 793-913 (2012).

Wisconsin High Court In Fragmented Decision Dismisses Fired Church Employee's Breach of Contract Claim

DeBruin v. St. Patrick Congregation, (WI Sup. Ct., July 12, 2012), is a suit by a Catholic Church's former Director of Faith Formation against the parish claiming that she was fired from her position in breach of her contract with the congregation. The case was certified by the state court of appeals to the Wisconsin Supreme Court.  The case generated 4 separate opinions, with 5 of the 7 Supreme Court justices agreeing with the trial court that plaintiff's suit should be dismissed.  Justice Roggensack, in an opinion joined by 2 other justices, held that permitting the claim to proceed would unconstitutionally interfere with the Church's choice of ministerial employees.

Justice Crooks and Justice Prosser each wrote a concurring opinion taking the position that the court should decide the case on contract, rather than constitutional, grounds (though Justice Prosser discussed the constitutional issues at some length). Justice Crooks held that no contract exists because the contract provision plaintiff sought to enforce amounted to an illusory promise.  Plaintiff could be terminated only for good an sufficient cause, but the determination of what is sufficient cause was left by the contract solely to the employer's determination.  Justice Prosser concluded that a contract exists, but that the Church "reserved its rights to terminate its ministerial employees on grounds of 'dissatisfaction,' and it exercised those rights." Second-guessing the parish's decision would involve the court in an internal parish conflict and would be inconsistent "with any reasonable view of religious liberty."

Finally, Justice Bradley (joined by Chief Justice Abrahamson) dissented, holding that the common law contract claims at issue do not implicate free exercise concerns, and that it premature on the record before the court to determine whether the claims would foster excessive state entanglement with religion.  Among the issues on which the various justices disagree is the extent to which the the U.S. Supreme Court's 2012 Hosanna-Tabor decision on the ministerial exception doctrine (see prior posting) should be seen as barring common law breach of contract suits by ministerial employees.

Recent Prisoner Free Exercise Cases

In Guillory v. Ellis, 2012 U.S. Dist. LEXIS 94619 (ND NY, July 9, 2012) a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 94618, March 22, 2012) and held that factual disputes prevent the granting of summary judgment in favor of a Jewish inmate who complained about two incidents: on one date, due to confusion regarding the call-out list he was not permitted to attend religious services and on another date religious services for Purim were cut short.

In Farrell v. Ercole, 2012 U.S. Dist. LEXIS 95595 (SD NY, July 10, 2012), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 155,633, Dec. 8, 2011) and denied the habeas corpus petition of an inmate whose convictions grew out of several armed robberies. Among petitioner's complaints was the trial court's denial of his request for an adjournment of his trial on a Friday afternoon so he could return to Rikers Island before sundown to observe the Jewish Sabbath.

In Morales v. Putnam, 2012 U.S. Dist. LEXIS 96327 (MD PA, July 11, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 95906, June 7, 2012) and dismissed, for failure to exhaust administrative remedies, the complaint of an inmate who adhered to the Taino Indian religion that he was required to shave and get a hair cut after his transfer to an out-of-state prison. He says his religious grooming exemption should have prevented his being placed on the out of state prison transfer list.

City's Ban on Fortune Telling Violates 1st Amendment

In Adams v. City of Alexandria, (WD LA, July 11, 2012), a Louisiana federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 97042, June 20, 2012) and entered a declaratory judgment that a city's ban on "palmistry, card reading, astrology, fortune-telling, [and] phrenology" violates the First Amendment.  Plaintiff is a tarot card reader who reads fortunes in exchange for voluntary donations. The magistrate rejected the city's argument that the ordinance merely regulates commercial speech. Applying strict scrutiny to the ordinance, the magistrate said:

Based on its own clairvoyance, the City has decreed in brief that it is impossible to predict the future, and contends the business of fortune-telling is a fraud and is inherently deceptive....  The City suggests that "fortune-tellers have no demonstrable facts upon which to base their predictions."... The danger of the government deciding what is true and not true, real and unreal, should be obvious. For example, some might say that a belief in God or in a particular religion, for example, or in the "Book of Revelations" is not supported by demonstrable facts. Books that repeat the predictions of Nostradamus and the daily newspaper horoscope could be banned under the City's reasoning.

In adopting the magistrate's recommendations, the federal district judge added one comment--  as a supplement to a footnote in the magistrate's opinion. The footnote had said that Tarot cards are a set of 22 pictorial playing cards. The court added:

tarot cards come in many forms, some dating back centuries.... Tarot decks are often 78 card decks, consisting of face cards (sometimes called Major Arcana) and number cards.... It is usually the 22 face cards that are used in fortune telling. We note also with interest that the "art" of fortune telling proliferates in front of St. Louis Cathedral, in the City of New Orleans, apparently without incident.

Delaware High Court Rejects Wife's Claim That Alimony Computation Infringed Her Free Exercise Rights

In Wright v. Wright, (DE Sup. Ct., July 10, 2012), the Delaware Supreme Court rejected a claim that the state's Family Court violated the free exercise clauses of the Delaware and federal constitutions in the way it computed a wife's ability to pay alimony. In reviewing her monthly expenses, the Family Court reduced her monthly charitable contributions from $1000 to $100, finding that to be a "more reasonable amount."  The $1000 represented the wife's tithing to her church, and she claimed that the alimony award prevents her from paying the obligatory 10% required by her religious beliefs. However, the Supreme Court held: "The Family Court found that even after the alimony payments, the Wife still has a surplus of $1,402—more than enough to pay for the remaining $900 for tithing should the Wife so choose."

Court Temporarily Enjoins Philadelphia's Ban On Food Program In Parks

Yesterday, a Pennsylvania federal district judge issued a temporary injunction against enforcement of Philadelphia's new ordinance that bans public feeding of groups of more than 3 people in any city park.  The ordinance is part of the city's efforts to close down an established program by Philadelphia churches to feed the homeless in city parks, and move the food program to indoor facilities.  As an interim measure, the program would be moved to an area outside city hall. (See prior posting.) According to the Philadelphia Inquirer, yesterday's ruling in Chosen 300 Ministries, Inc. v. City of Philadelphia, (ED PA, July 12, 2012), did not focus on the constitutional objections that had been raised by plaintiffs, but instead on the fact that there had been little evidence that the City Hall site was preferable. In his ruling from the bench-- to be followed by a formal written opinion-- Judge William H. Yohn, Jr. said:

It seems to me that . . . the parks provide more dignity than the concrete apron outside City Hall. It doesn't strike me that City Hall is an acceptable option.

Judge Yohn said he was inclined to leave the temporary injunction in place for a year to give the city and homeless advocates time to work out an alternative arrangement.

Critical Reaction To German Ban on Ritual Circumcision of Boys Continues

Jewish Journal reported yesterday that rabbis from around Europe have held a 3-day meeting in Berlin to plan how to combat the ruling from a court in the city of Cologne last month banning ritual circumcision of young boys. (See prior posting.)  They plan further talks with Muslims and Christians who also see the ruling as a more general threat to religious freedom. Pinchas Goldschmidt, the chief rabbi of Moscow who organized the meeting, urged the German Jewish community to continue to perform circumcisions without waiting for a change in the law. The head of the German Medical Association, who has urged doctors to refrain from performing circumcisions until the legal situation is clarified, says that there is a risk that now increased numbers of non-medically trained persons will perform circumcisions. This could lead to medical complications.

This week Jewish and Muslim leaders also met with members of the German and the European  Parliament seeking legislation to stop the ban from spreading beyond the area affected by the Cologne court's decision.  Rabbi Goldschmidt said that the ban threatens the existence of Germany's Jewish community and is another example of creeping prejudice in European law against non-Christians. Germany's opposition Green Party promised to seek legislation to protect religious rights of Jews and Muslims.  Meanwhile, British Chief  Rabbi Lord Jonathan Sacks wrote a powerful denunciation of the German court's action, saying in part:

It is hard to think of a more appalling decision. Did the court know that circumcision is the most ancient ritual in the history of Judaism, dating back almost four thousand years to the days of Abraham? ... Did it know that banning milah [circumcision] was the route chosen by two of the worst enemies the Jewish people ever had, the Seleucid ruler Antiochus IV and the Roman emperor Hadrian, both of whom set out to extinguish not only Jews but also Judaism?.... If it did not [know this], then how was it competent to assess the claim of religious liberty? If it did, then there are judges in Germany quite willing to say to religious Jews, in effect, "If you don’t like it, leave." Do judges in Cologne today really not know what happened the last time Germany went down that road?

[Thanks to Eric Rassbach via Religionlaw for the lead on Lord Sack's comments.]

UPDATE: BBC News reports (7/13) that a spokesman for German Chancellor Angela Merkel said: "Circumcision carried out in a responsible manner must be possible without punishment..... For everyone in the government it is absolutely clear that we want to have Jewish and Muslim religious life in Germany." He added that the government would look urgently at ways to create "legal certainty."

Shiite Cleric Convicted of Blasphemy In Indonesia

In Indonesia yesterday, a court in Sampang district has sentenced Shiite Muslim cleric Tajul Muluk to two years in prison for "blasphemy causing public anxiety."  AFP reports that Muluk was arrested in April during anti-Shiite riots  on the island of Madura. Witnesses told the court that Muluk taught that the Qur'an is not an authentic text, that Muslims should pray only three times a day, and that the hajj pilgrimage is not obligatory. Human Rights Watch, calling for the government to drop all charges against Muluk, says that the Shiite community in Sampang's Nangkernang village has been under attack by Shiites since 2006 when 40 Sunni clerics and four police officers signed a public statement, declaring that the Shiite sect is heretical.  Human Rights Watch also decried the role of Bakor Pakem (the Coordinating Board for Monitoring Mystical Beliefs in Society) in prosecutions under Indonesian law. A part of the public prosecution office, Bakor Pakem is charged with "oversight in respect of religious beliefs that could endanger society and the state."

6th Circuit: Rehabilitation Act Non-Discrimination Provisions Apply To Religious Organizations Delivering Social Services

The federal Rehabilitation Act, Sec. 504 (29 USC 794(a)), prohibits any program receiving federal financial assistance from discriminating on the basis of disability. As defined in Sec. 794(b)(3), the ban covers an entire organization, even if the part of the organization that discriminated does not receive federal funds, where the organization "is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation." Otherwise the ban applies only to the part of the organization that receives funding.  In Doe v. Salvation Army in the United States, (6th Cir., July 11, 2012), the U.S. 6th Circuit Court of Appeals reversed the district court's grant of summary judgment to defendant finding that questions of fact remain as to whether the Salvation Army principally engages in the business of providing social services. The court said:

nothing in the statute distinguishes between social services done for worship or spiritual reasons and social services done for secular reasons. If the statute had expressly excluded “religious organizations” or entities engaging in “religious services,” we would be faced with the difficult task of deciding whether § 504 applies to a religious organization that defined its religious service as the practice of social service. Under the current language of the statute, however, the Salvation Army is no different from any other church or religious organization that chooses to engage in one of the statutorily designated activities.

The court also rejected the Salvation Army's broader claim that religious organizations are totally exempt from Sec. 504.  The Salvation Army relied primarily on language in a 1987 Senate Report on amendments to the law.  The court however emphasized that Congress did not include any express exemption from Sec. 504 for religious organizations.  This stands in contrast to various religious exemptions that are included in other federal non-discrimination laws. [Thanks to Steven H. Sholk for the lead.]

Criminal Mistreatment Conviction of Faith-Healing Father Upheld

In State of Oregon v. Worthington, (OR App., July 11, 2012), an Oregon appellate court upheld the conviction of a member of the Followers of Christ Church for second degree criminal mistreatment in the death of his 15-month old daughter. Because of his religious belief in faith healing, defendant did not seek medical attention for his daughter who died of bacterial pneumonia and a blood infection associated with a large cystic mass that compromised her body's immune defenses. The court rejected defendant's argument that because of the state constitution's free exercise protections, he could be convicted only if the state established that he knew his conduct would bring about his daughter's death. Causing death is not an element of the criminal mistreatment charge. Defendant was acquitted by the jury on the separate manslaughter charge.  His wife was acquitted on both manslaughter and mistreatment charges. (See prior related posting.)

Residence For Sikh Priests Entitled To Tax Exemption

In Dasmesh Darbar Sikh Temple v. Marion County Assessor, (OR Tax Ct., July 11, 2012), the Oregon Tax Court, Magistrate Division, held that a house provided as a residence for a Sikh temple's three priests is entitled to a tax exemption. The county had determined that the house was a residence whose use was a mere convenience. State law requires that, for the residence to qualify for an exemption, clergy living there must be a requirement of church doctrine or a practical necessity.  The court concluded that this requirement was met because the priests are "carrying on the 500 year old tradition of living close to or in the temple to 'protect the scriptures (Guru Granth Sahib)'".

Agreement Reached For Language On Role of Shariah In Egypt's New Constitution

Egyptian Independent reported yesterday that drafters have reached an agreement on the language for Egypt's new constitution regarding the place of Islam and the role of Islamic law. The committee of Egypt's Constituent Assembly charged with drafting constitutional provisions on the basic components of the state is proposing the following as Articles 1 and 2 of the new Constitution:

1. The Arab Republic of Egypt is democratic, consultative, constitutional, and modernized; based on separation of powers and principal of citizenship, it is part of the Arabic and Islamic nation and tied to the African continent.

2. Islam is the religion of the state, and Arabic is its official language, and the principles of Islamic Sharia are the main source for legislation. Christians and Jews shall resort to legislation derived from their own religions.

"Principles of Islamic Sharia" will be interpreted by Al-Azhar. (See prior related posting.)

In Face of Lawsuit, County Willing To Remove 10 Commandments, But Sponsor Refuses

As previously reported, in May the American Atheists filed a lawsuit in federal district court in Florida challenging a 5-foot high granite Ten Commandments monument that had been erected in the courtyard of the Bradford County, Florida Courthouse. Now News4Jax reports that in order to avoid a costly legal battle, the county has directed the Community Men's Fellowship, the group that sponsored the monument, to remove it. However the group has refused. Responding to the county's formal notice, the group wrote last month: "We have prayerfully considered your request and have determined that we will not comply with the County's order." [Thanks to Scott Mange for the lead.]

Court Applies New York "Get" Law In Muslim Divorce

In Majdeh M. v. Jamshid A., (Kings Co. NY Sup. Ct., July 4, 2012), a New York trial court applied New York's "Get" Law, Domestic Relations Law Sec. 236 [B] [5] [h] (originally enacted to deal with Jewish divorce issues), to an action involving maintenance and equitable distribution awards in a Muslim divorce. The court held:

In the case at bar, the wife testified that she is a Muslim and if she does not obtain a religious divorce she will be unable to remarry. Although she will be divorced in accordance with secular law, she will not be considered a single woman within her religious community. She further testified that in the event she were to travel to Iran that her husband, or then ex-husband, could withhold his permission for her to leave Iran. The court credits the wife's testimony that she made arrangements for the parties to meet at a local mosque to address the religious divorce but that the husband simply did not respond.... 

The credible testimony by the wife leads this court to find that the husband's refusal to give the wife a religious divorce, thereby removing barriers to her remarriage, is a basis to exercise its discretion under Domestic Relations Law 236 [B] [5] [h] to disproportionately distribute marital assets. The husband shall have 45 days from the date of this decision to take any necessary steps to remove any barriers to the wife's remarriage. In the event that the husband fails to comply, he shall forfeit the maintenance and equitable distribution award made herein and repay to the wife the $4,000.00 cash advance heretofore discussed.

The court also held that the parties' mehrieh (dowry agreement), while not enforceable in a matrimonial action, can be enforced as a separate contract claim. It rejected the husband's contention that the mehrieh is merely a religious document.

U.S. Again Protests Iran's Imprisonment of Christian Pastor

On Monday, the U.S. State Department again issued a statement protesting Iran's continued imprisonment of Christian pastor Youcef Nadarkhani who, it says, still faces the threat of execution for simply following his faith. Monday marked the 1000th day of Nardkhani's imprisonment. CNN, which reports that Nardkhanis' next court hearing is scheduled for Sept. 8, explains the background:

Nadarkhani, born to Muslim parents..., converted to Christianity when he was 19. Later he was ordained as a minister and led a network of house churches in Iran. He was arrested in October 2009 after he lodged a protest with local education officials after learning his child was being forced to read from the Quran.... He was charged with apostasy and convicted in a provincial court -- which sentenced him to death. He appealed.... The case made its way to the Supreme Court, which said Nadarkhani's sentence could be overturned if he recanted. The 34-year-old pastor has refused.

(See prior related posting.)