Another Catholic Diocese Files Suit Challenging ACA Contraceptive Services Mandate

On Thursday, the Catholic Diocese of Peoria, Illinois filed a lawsuit challenging the mandate issued under the Affordable Care Act requiring health insurance policies offered by employers to cover contraceptive services.  (Diocese press release).  Peoria Bishop Daniel Jenky said: "I have an obligation to protect the Church’s ability to freely practice our religion.... I cannot remain silent while the right of Catholics to practice our faith is being so gravely threatened."  Several other Illinois dioceses and Catholic Charities organizations have already filed a similar lawsuit. (See prior posting.) The federal government has proposed a compromise on the issue, but most Catholic organizations find it unacceptable. (See prior posting.)

New Jersey Supreme Court: "Deific Command" Jury Instruction Not Required In Case

In State v. Singleton, (NJ Sup. Ct., July 30, 2012), the New Jersey Supreme Court clarified when a modified insanity instruction to the jury must be given as to a defendant who claims he committed an illegal act because he was commanded to do so by God. In a case which generated 3 separate opinions from the 6 justices currently sitting on the court, the majority reversed the appeals court and held that the special charge (known in New Jersey as the Warlock charge) need not be given in this case. Justice LaVecchia wrote the opinion of the court (though it was joined only by Justice Wefing). As summarized by the court's syllabus:

Defendant is not entitled to a Worlock charge because the evidence does not clearly indicate that he failed to appreciate that killing Cazan was contrary to society’s morals. The Worlock variation is not available to all those who develop idiosyncratic moral compulsions from interpreting religious material....   Defendant’s personal belief system was based on his own interpretation of scripture, fortified through dreams in which he believed to receive communications from God. That does not render his belief system in his "right to kill" certain sinners the equivalent of a command from God to kill.....   Defendant also has failed to demonstrate entitlement to a Worlock charge because the evidence does not clearly indicate that he was acting pursuant to a delusional command at the time of the killing. A Worlock charge is available only when a perceived divine command overcomes a defendant’s ability to be conscious of society’s law and mores disapproving of that command.

Justice Paterson, joined by Chief Justice Rabner concurred, arguing that the Court should reject past precedent which created special considerations when a defendant claimed he was acting under a deific command.  They reasoned that the concept "invites a defendant to exploit a core value of our society, respect for the religious beliefs of others, for tactical advantage."

Justice Hoens, joined by Justice Albin dissented, saying that "the majority has created a test so narrow as to be essentially non-existent."

DC High Court Says Pastor Can Pursue Breach of Contract Claim

In Second Episcopal District African Methodist Episcopal Church v. Prioleau, (DC Ct. App., Aug. 9, 2012), the District of Columbia's highest appeals court held that the 1st Amendment does not prevent a minister from pursuing a claim for breach of contract against her church.  At issue was the failure of the church to pay Rev. Deloris Prioleau $39,200 it owed her as salary under the contract covering her final year as the church's pastor. The court concluded that the case should be able to be resolved using neutral principles of law, but if at trial it turns out that matters of doctrinal interpretation or church governance are at issue, the court should then dismiss the case.

German Constitutional Court Says Civil Partners Must Get Same Treatment As Spouses In Tax Law

In In re the Constitutional Complaints of Mr. P, (Fed. Const. Ct. Germany, July 21, 2012), Germany's Constitutional Court held that the prior version of Germany's Gift and Inheritance Tax Act was unconstitutional under Germany's Basic Law because it treated same-sex civil partners differently than spouses in a traditional marriage. Deutsche Welle reported on the decision.

Pagan Group's Property Not Entitled To Tax Exemption

In Maetreum of Cybele, Magna Mater, Inc. v. McCoy, (S. Ct. NY Albany Co., Aug. 2, 2012), a New York state trial court concluded that property owned by the Cybeline Revival, a religious pagan faith, was not entitled to a tax exemption because the organization failed to show that the property was used primarily in furtherance of the organization's religious purposes. Instead the primary use was to provide cooperative housing for the priestesses and their guests.  The religious activities that occurred on the property were merely incidental to its use as a residence. The court added that it had no reason to doubt the sincerity of the religious and spiritual beliefs of Cybeline Revival adherents.  Reporting on the decision, the Watershed Post says that the Maetreum will appeal and seek protection from foreclosure that is threatened by the county in order to recoup back taxes.

9th Circuit: Sovereign Immunity Protects U.S. In FISA Suit By Islamic Charity

In a decision handed down on Tuesday, the U.S. 9th Circuit Court of Appeals dismissed a claim by an Islamic Foundation for damages from alleged warrantless electronic surveillance in 2004 in violation of the Foreign Intelligence Surveillance Act.  In Al-Haramain Islamic Foundation v. Obama,  (9th Cir., Aug. 7, 2012), the court held that  the United States has not waived its sovereign immunity for suits under 18 USC Sec. 1810 for wrongful collection of information, even though it has done so as to suits under other portions of FISA for wrongful use and disclosure of the information.  The court also held that plaintiffs had made insufficient allegations against FBI director Robert Mueller to find personal liability on his part for the surveillance.  The result of the court's holding was the reversal of the trial court' award of $2.5 million in attorneys' fees, as well as its award of comparatively small amounts in statutory damages. The Recorder reports on the decision.

Official May Testify On Santa Muerte Connection To Drug Trade

In United States v. Goxcon-Chagal, (D NM, Aug. 5, 2012), a New Mexico federal district court rejected challenges to proposed testimony by a U.S. Marshall that Santa Muerte materials are tools of the trade of drug traffickers. In addition to finding that the testimony is admissible under the Federal Rules of Evidence, the court found no First Amendment problem with the proposed testimony. In a 67-page opinion, the court concluded:

Almonte’s testimony about the tools of the trade of drug organizations as they relate to individuals who worship Santa Muerte would be helpful to the jury.  Almonte’s proposed expert testimony is sufficiently reliable for the Court to permit him to testify before a jury.  Almonte’s proposed testimony is not improper profile evidence. Neither the Establishment Clause nor the Free Exercise Clause require exclusion of this evidence. Because the risk of unfair prejudice does not substantially outweigh the probative value of Almonte’s testimony, the Court will not exclude his testimony under rule 403....

While the religion associated with Santa Muerte is the only one that is at issue, the introduction of the evidence does not seek to punish Medina-Copete for worshiping Santa Muerte, but only for having drugs in her possession.  While worshipers of Santa Muerte are at a disadvantage because they may be suspected of and successfully prosecuted for drug activity more than nonworshipers of Santa Muerte, the presence of prayers and statutes is not a necessary or sufficient condition for a criminal conviction.  The Court has difficulty saying that the evidence violates the non-preferential principle of the Establishment Clause if the religion is neither a necessary or sufficient reason for a criminal conviction.

Federal Court Upholds Hawaii's Ban On Same-Sex Marriage

In Jackson v. Abercrombie, (D HI, Aug. 8, 2012), an Hawaii federal district court, in a 120-page opinion, upheld as constitutional Hawaii's laws that bar same-sex marriage.  The court held that rational basis review applies in the federal equal protection and due process challenges to the state constitutional and statutory provisions involved.  The court explained:

The right to marry someone of the samesex, is not "objectively, deeply rooted in this Nation’s history and tradition" and thus it is not a fundamental right..... Hawaii’s marriage laws do not treat males and females differently as a class; consequently, the laws do not discriminate on the basis of gender.  The United States Supreme Court has never held that heightened scrutiny applies to classifications based on sexual orientation....

[T]he legislature could rationally conclude that defining marriage as a union between a man and woman provides an inducement for opposite-sex couples to marry, thereby decreasing the percentage of children accidently [sic.] conceived outside of a stable, long-term relationship.... The legislature could also rationally conclude that other things being equal, it is best for children to be raised by a parent of each sex.

Hawaii has enacted a law providing for civil unions that give partners all the same state legal rights as married couples. AP reports on the decision. Alliance Defending Freedom links to the pleadings in the case.

American Muslims and Copts Urge Egypt To Adopt Religious Equality and Secular Legal System In New Constitution

RNS reports on a letter released Tuesday from Muslim and Coptic Christian leaders in the United States calling on Egypt's new government that is drafting a constitution for the country to "recognize the equality of all Egyptians and to reject any language that would discriminate against any citizen of Egypt on the basis of that citizen's religion or gender." The letter also urged Egyptians to reject language that would describe Shariah as the source of the country's laws. Among those signing the letter were U.S. Rep. Keith Ellison;  Imam Mohamed Magid, president of the Islamic Society of North America; and Rev. Hegomen Moises Bogdady and the Rev. Michael Sorial, priests with the Coptic Orthodox Archdiocese of North America. The joint letter was sponsored by the Arab American Institute.

Suit Challenges Portion of Newly Approved Missouri Constitutional Amendment

Only one day after Missouri voters approved a state constitutional amendment providing extensive protections for religious expression (see prior posting), the ACLU announced the filing of a class action in federal district court challenging on federal constitutional grounds one aspect of the amendment.  A portion of the amendment provides that  the religious freedom rights of prisoners in state or local custody will be limited to the rights granted by federal law.  More extensive religious liberty protections under the state constitution will not apply to prisoners.  The class action complaint (full text) in Qandah v. Lombardi, (WD MO, filed 8/8/2012) contends that  this withdraws existing state protections of religious liberty from prisoners in violation of the federal Establishment Clause and Equal Protection Clause. It alleges: "The challenged provision has the principal or primary effect of inhibiting religion among prisoners in Missouri."

8th Circuit Rejects Narrow Challenge To Hate Crimes Law

In United States v. Maybee, (8th Cir., Aug. 6, 2012), the U.S. 8th Circuit Court of Appeals upheld against a narrow constitutional attack the constitutionality of 18 USC 249(a)(1), one of the provisions of the Shepard-Byrd Hate Crimes Prevention Act. The section prohibits causing bodily injury to a person because of the person's actual or perceived race, color, religion, or national origin. The case involved an assault motivated by race and national origin.  According to the court, both parties agreed that the constitutionality of the section depends on whether it is a proper exercise of Congress power under Section 2 of the 13th Amendment to ban "badges and incidents of slavery."  The court rejected the claim that to be constitutional the section needed to not only require racial motivation, but also require that the assault be motivated by the victim’s enjoyment of a public benefit. AP reports on the decision. [Thanks to Michael Lieberman for the lead.]

Missouri Voters Overwhelmingly Approve Religious Expression Amendment

Missouri voters yesterday approved state Constitutional Amendment 2 by a vote of 82.8% in favor and 17.2% against. (Official results.) The measure was described briefly on the ballot:

Shall the Missouri Constitution be amended to ensure: That the right of Missouri citizens to express their religious beliefs shall not be infringed; That school children have the right to pray and acknowledge God voluntarily in their schools; and That all public schools shall display the Bill of Rights of the United States Constitution

The actual language added by the constitutional amendment is extensive. Here it is, slightly edited, and broken down by subject matter headings that I have inserted:

Anti-Establishment and Free Exercise Provisions:

• neither the state nor any of its political subdivisions shall establish any official religion, nor shall a citizen's right to pray or express his or her religious beliefs be infringed;
• the state shall not coerce any person to participate in any prayer or other religious activity, but shall ensure that any person shall have the right to pray individually or corporately in a private or public setting so long as such prayer does not result in disturbance of the peace or disruption of a public meeting or assembly;

Prayer On Public Property and Legislative Invocations:

• citizens as well as elected officials and employees of the state of Missouri and its political subdivisions shall have the right to pray on government premises and public property so long as such prayers abide within the same parameters placed upon any other free speech under similar circumstances;
• the General Assembly and the governing bodies of political subdivisions may extend to ministers, clergypersons, and other individuals the privilege to offer invocations or other prayers at meetings or sessions of the General Assembly or governing bodies;

Protection of Students' Religious Expression:

• students may express their beliefs about religion in written and oral assignments free from discrimination based on the religious content of their work;
• no student shall be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs;
• the state shall ensure public school students their right to free exercise of religious expression without interference, as long as such prayer or other expression is private and voluntary, whether individually or corporately, and in a manner that is not disruptive and as long as such prayers or expressions abide within the same parameters placed upon any other free speech under similar circumstances;

School Display of Bill of Rights:

• to emphasize the right to free exercise of religious expression, all free public schools receiving state appropriations shall display, in a conspicuous and legible manner, the text of the Bill of Rights of the Constitution of the United States;

Prisoners Get No Additional Religious Rights:

• this section shall not be construed to expand the rights of prisoners in state or local custody beyond those afforded by the laws of the United States.

The St. Louis Post-Dispatch reports on the results.

Norwegian Children's Ombudsman Urges End To Ritual Circumcision of Boys

JTA reported Monday that Norway's ombudsman for children has proposed that Jews and Muslims replace circumcision of boys with a symbolic non-surgical ritual. Saying that "Muslim and Jewish children are entitled to the same protection as all other children," Dr. Anne Lindboe told a Norwegian paper last month that circumcision in boys is a violation of their right to make decisions about their own body. The president of Oslo's Jewish community responded that the mandate of Norway’s children’s ombudsman does not extend to devising Jewish rituals.

Lawsuit Challenges Proposed Eruv As Establishment Clause Violation

Last week, a group opposed to the creation of an eruv by Orthodox Jewish residents of the Village of Westhampton, New York filed suit in federal district court seeking a declaratory judgment that use of public property, including utility poles, to create a symbolic religious boundary violates the Establishment Clause. The suit also seeks an injunction against construction of the eruv, which is comprised largely of plastic strips running up utility poles to intersect with existing wires that create the symbolic boundary. The complaint (full text) in Jewish People for the Betterment of Westhampton Beach v. Village of Westhampton Beach, (ED NY, filed 7/30/2012), alleges that:

The eruv ... will mark certain wholly public spaces within the Village with religious significance. Indeed, it will invest a large portion of the Village with a narrow and parochial religious function.... [I]t will be a constant ... reminder to the community at large, that the secular public spaces of the Village have been transformed for religious use and identity; to the non-Jewish residents, that the Village and LIPA have given preferred status to the Jewish religion as the only faith to be permitted to permanently affix religious symbols to utility poles ... or to physically demarcate certain public spaces with particular religious significance; and to large portions of the Jewish community... that one particular form of Judaism has been preferred and endorsed by the Village over another.

Newsday on Sunday reported on the filing of the lawsuit. [Thanks to Pew Forum for the lead.]

American Bar Association Condemns Religious Profiling

At its annual meeting yesterday, the American Bar Association House of Delegates voted to expand its policy against racial and ethnic profiling by police to also condemn profiling on the basis of actual or perceived religious affiliation. (ABA Press Release). Resolution 116 (full text) still permits police to make mention of traditional religious dress when issuing a description of a suspect. A report (full text Word.doc) accompanying the text of the resolution says that, since 9/11, the FBI, customs and immigration enforcement, and local police are all profiling Muslims.

Murfreesboro Mosque Finally Gets Occupancy Permit

In Rutherford County, Tennessee yesterday, county officials finally issued a temporary 30-day occupancy permit to the controversial Murfreesboro Islamic Center on which construction has just been completed.  Landscaping must be finished before a permanent permit is issued. The county's action comes after a federal court last month ordered officials to expedite issuance of the permit. (See prior posting.) As reported by CNN, the permit comes in the wake of 2 years of litigation, anti-Muslim vandalism and an arson attack. This will allow the new mosque to hold its first service before the end of the holy month of Ramadan.

Rabbi Sues Over Pennsylvania Funeral Requirements

A Pittsburgh, Pennsylvania rabbi has filed a federal lawsuit against the Pennsylvania Board of Funeral Directors and two other state officials seeking an injunction against interpreting Pennsylvania's funeral-director law as requiring licensed funeral director when a funeral is supervised by a religious authority and there is no embalming or fee-for-service. According to yesterday's Pittsburgh Post Gazette, Rabbi Daniel Wasserman charges that rabbis, funeral homes and grieving families are being pressured by the state funeral board.  The complaint in the lawsuit alleges:

Plaintiff -- unlike some clergy from other religions -- is now being threatened with civil action and criminal prosecution, including stiff fines and even imprisonment, for conducting religious funerals in place of licensed funeral directors who, under color of state law, interfere in purely religious observances for no other justification than personal profit.

Obama Signs New Law That Includes Ban On Disruptive Picketing of Military Funerals

In a ceremony at the White House (President's remarks), President Obama yesterday signed HR 1627, the Honoring America’s Veterans and Caring for Camp Lejeune Families Act.  Section 601 of the Act prohibits demonstrations (including picketing, speeches and handbilling) within 300 feet of a military funeral or at the residence of the deceased service member or veteran's family during the period from 2 hours before to 2 hours after the funeral. It also prohibits activities within 500 feet of a military funeral that willfully impede access to it. The section was presumably in response to widely publicized picketing of military funerals by members of the Westboro Baptist Church who carried signs, which among other things, protested U.S. acceptance of homosexuality.  In a case last year (see prior posting), the U.S. Supreme Court upheld Westboro's activity as protected by the 1st Amendment. The Act signed by the President limits its demonstration ban to individuals who willfully make noise or diversion that intentionally disturbs (or tends to disturb) the peace and good order of the funeral.  In its Westboro decision, the Supreme Court emphasized that the demonstration at issue in that case did not disrupt the funeral.

Court Rejects Diplomatic Immunity And 1st Amendment Claims As To Church's Auto Registration

In Living In Jesus Truth Ministry v. Wise, (D NV, Aug. 3, 2012), Tod Brenbarger, a minister for Living In Jesus Truth Ministry, sued challenging an administrative fine that had been imposed by Nevada for registering two vehicles to the church at a fictitious address. He used post office boxes instead of a physical address as required by Nevada law. In the state proceedings, Brenbarger claimed immunity as a public minister of World Prayers Answered, which he asserted is a foreign ecclesiastical state. The state court judge delayed ruling on the claim and Brenbarger failed to appear for the next hearing. So the fine against him was upheld. At that point Brenbarger filed this suit in a Nevada federal district court, asking for a total of $60 million in damages and interest against the administrative law judge and the state attorney general and her staff. The court dismissed these claims on 11th Amendment and quasi-judicial immunity grounds. As to Brenbarger's claim for injunctive relief against the Department of Motor Vehicles, the court held that Brenbarger "failed to plausibly allege that World Prayers Answered is a sovereign ecclesiastical state." It also rejected his claim that  DMV violated his and his church's "First Amendment right for a church to not have a fixed address."  It held that as a pro se litigant, Brenbarger cannot represent the church in court.  Corporations must be represented by counsel. It also found no free exercise or Establishment Clause violations as to Brenbarger personally in the vehicle registration requirement.

USCIRF Issues New Report On Constitutions Of Muslim Countries

The U.S. Commission on International Religious Freedom last Friday released a new report titled The Religion-State Relationship & the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Majority Muslim Countries and Other OIC Members.  It surveys the constitutions of 46 Muslim-majority countries and 10 others that are OIC members. According to USIRF's summary of the report:

Approximately 44% of the world’s Muslim population live in 23 majority Muslim countries that have declared Islam to be the state religion; the remaining 56% live in countries that either proclaim the state to be secular or make no pronouncements concerning an official state religion.

Approximately 39% of the world’s Muslims live in 22 countries whose constitutions provide that Islamic law, principles, or jurisprudence should serve as a source of, or limitation on, general legislation or certain select matters.  This is the case in 18 of the 23 countries where Islam is the religion of the state, as well as four majority Muslim countries where Islam is not the declared state religion.

Only 6 of the countries surveyed, in all of which Islam is the declared state religion, provide no constitutional provision at all concerning religious freedom specifically.  Other countries, including ones in which Islam is the declared state religion, provide constitutional guarantees of the right to freedom of religion or belief, which comply in varying degrees to international human rights norms.  

Recent Articles of Interest

From SSRN:

• Diana Ginn and David Blaikie, Judges and Religious-Based Reasoning, (Constitutional Forum, Vol. 19, No. 2, p. 53, 2011).
• Bruce Ledewitz, Toward a Meaning-Full Establishment Clause Neutrality, (Chicago-Kent Law Review, Vol. 87, No. 3, 2012).
• Shahar Lifshitz, The Pluralistic Vision of Marriage, (Marriage at Crossroads, Elizabeth Scott, Marsha Garrison, eds., Cambridge publishing, 2012).
• Sylvie Courtine-Denamy, The 'Chosen People' and the Universal Commonwealth: From Bergson to Voegelin, (July 26, 2012).
• Susan C. Hascall, Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative Justice, (Berkeley Journal of Middle Eastern & Islamic Law, Forthcoming).
• Mohamed Abdelaal, Taqlīd v. Ijtihād: The Rise of Taqlīd as the Secondary Judicial Approach in Islamic Jurisprudence, (Journal of Jurisprudence 151, 2012).
• Muhammad Munir, The Islamicity of Punjab Pre-emption Act, 1991 in Pakistan, (July 30, 2012).

From SmartCILP:

• Shirley Darby Howell, Religious Treatment Exemption Statutes: Betrayest Thou Me With a Statute?, 14 Scholar 945-985 (2012).
• Benjamin Shmeuli and Yuval Sinai, Liability Under Uncertain Causation? Four Talmudic Answers To a Contemporary Tort Dilemma, 30 Boston University International Law Journal 449-495 (2012).

Estonia Plans To Tighten Regulation of Kosher Slaughtering

JTA reports today that in Estonia, Sirje Jalakas, the head of the country's Animal Welfare Bureau, says that Estonia plans to change its laws governing kosher slaughter of animals in light of the 2010 DialRel report that says kosher slaughter causes higher risk of pain in animals than methods that involve stunning the animals before slaughter. However, Jalakas says that Estonia will not ban kosher slaughter, and the country's chief rabbi says that authorities are consulting him on the proposed changes. Estonia already has strict regulation of kosher slaughter.  Authorities must be notified at least 10 days in advance of each slaughter, and the procedure is overseen by a government inspector.  Animals are stunned immediately after their throats are cut-- a procedure known as post-cut stunning and which is not approved by all rabbis.

Recent Prisoner Free Exercise Cases

In Dunn v. Pennsylvania Department of Corrections, (3rd Cir., July 30, 2012), the 3rd Circuit affirmed a  Pennsylvania federal district court's opinion dismissing an inmate's complaint that he was denied access to plants, herbs, crystals, tarot cards, runes, spices, and an altar cloth in his cell to practice his Wiccan religion, and that he was not permitted to grow his hair or beard and was denied a religious adviser.

In United States v. White, (10th Cir., July 31, 2012), the 10th Circuit agreed with a decision of the Kansas federal district court refusing to change defendant's judgment of conviction to reflect his new Muslim name that he took legally on the same day he was sentenced. The court also refused to order the Bureau of Prisons to change their database records to recognize defendant's Muslim name.

In Garraway v. Lappin, (3rd Cir., July 31, 2012), the 3rd Circuit rejected claims by a Muslim inmate that his rights under the 1st Amendment and RFRA were violated by prison policies limiting group prayer, lack of a full-time Sunni Muslim chaplain, alleged commissary markup of the price of Muslim religious items, prison policies as to Halal food and as to the number of books he could keep in his cell.

In Selah v. Fischer, 2012 U.S. Dist. LEXIS 104931 (ND NY, July 27, 2012), a New York federal district court adopted a federal magistrate's recommendation (2012 U.S. Dist. LEXIS 105388, July 3, 2012) and permitted an inmate who practices the Ethiopian Orthodox Christian faith to proceed against several individual defendants on his free exercise, RLUIPA and equal protection claims that authorities failed to recognize and accommodate his religious beliefs in numerous ways.

In Hodgson v. Roy, 2012 U.S. Dist. LEXIS 104665 (D MN, July 27, 2012), a Minnesota federal district court, adopting a magistrate's recommendations as to this part of the case (2012 U.S. Dist. LEXIS 105082, May 2, 2012), dismissed on standing grounds an inmate's Establishment Clause challenge to the prison system's Christian-based InnerChange Freedom Initiative.

In Marin v. Corrections Corporation of America, 2012 U.S. Dist. LEXIS 105547 (ND OH, July 29, 2012), an Ohio federal district court dismissed a complaint by an inmate that the prison chaplain has not purchased various divination tools and other items needed by him for the practice of his Santeria religion.

In Macedo v. Zeyer, 2012 U.S. Dist. LEXIS 106327 (ND OH, July 31, 2012), an Ohio federal district court dismissed as moot Jewish inmate's claim seeking and injunction to order that the prison's kosher food be prepared in compliance with Bureau of Prison standards. The court rejected plaintiff's claim that his free exercise rights were violated by communal, rather than individual, serving of grape juice for Shabbat services.

In Deleon v. Hamilton County Sheriff's Department, 2012 U.S. Dist. LEXIS 106653 (ED TN, July 31, 2012), a Tennessee federal district court dismissed an inmate's complaint that his free exercise rights were infringed when a correctional officer did not allow him to sign up for Sunday Religious Service some other unidentified programs for a period of time.

In Ramrattan v. New York City Department of Corrections, 2012 U.S. Dist. LEXIS 108603 (SD NY, Aug. 2, 2012), a New York federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that at Riker's Island his religion was listed incorrectly as "Other," there was no Hindu chaplain, his religious diet was not accommodated and he was prevented from observing several holy days.

Street Preachers Can Proceed Against Police For Interference With Their Activities

In two related decisions, Muniz v. City of San Antonio I, (WD TX, July 30, 2012), and  Muniz v. City of San Antonio II, (WD TX, July 30, 2012), a Texas federal district court permitted two Christian street preachers to proceed with several of their claims against the city of San Antonio and police officers for interfering with their preaching and handing out religious literature on public sidewalks at 10:00 and 10:30 at night. The cases involve two separate incidents, one of which resulted in one of the plaintiffs being arrested and held overnight.

More Settlements In ACLU's Suit Against Charter School For Promoting Islam

The ACLU of Minnesota announced yesterday that a Minnesota federal district court has approved settlement agreements reached with 3 leaders of the former public charter school, Tarek Ibn Ziyad Academy, in a lawsuit filed in 2009 by the ACLU charging the school with unconstitutionally promoting Islam. (See prior posting.) In the agreements, TiZA's former executive director Asad Zaman agreed to pay $17,500 back to the State of Minnesota and to drop $360,000 of claims he filed in bankruptcy court. Zaman, along with two other former TiZA leaders, Mahrous Kandil and Asif Rahman, also agreed to not serve as an officer, director or board member of any Minnesota public charter school for a period of three years, and Zaman agreed not to serve in other educational leadership capacities in charter schools as well. The ACLU's announcement contains links to the full text of the settlement agreements and court order dismissing the ACLU's claims against Zaman. The ACLU has previously reached settlements with other defendants in the action. MPR News reports on the settlement.

No Religious Liberty Violation In Holding Ministry CEO Liable For Organization's Unpaid Taxes

In Vaughn v. Internal Revenue Service, (ED NC, July 16, 2012) a North Carolina federal district court held that a bankruptcy judge did not violate the Free Exercise or Establishment Clause rights of Go Tell It Evangelistic Ministry (GTI), or its CEO and Chief Apostle Corletta Vaughn, when the bankruptcy court found Vaughn personally responsible for GTI's unpaid payroll taxes.  Appellants challenged the finding that Vaughn was liable for the tax payments under 26 USC 6672 as the person responsible for collecting them and paying them over to the government.The court said:

The bankruptcy court interpreted the [GTI] bylaws as authorizing the Chief Apostle to have decision making authority and supervision over business matters.... Appellants argue that this interpretation now forces the Chief Apostle of GTI to concern herself with secular affairs. Putting aside the fact that the plain language of the bylaws suggests that the Chief Apostle does concern herself with such affairs, the bankruptcy court did not base its decision on the bylaws alone. Contrarily, close examination of the bankruptcy court's order reveals that it placed great emphasis on what Ms. Vaughn actually did as the Chief Apostle of GTI.

Teacher's Discrimination Suit Dismissed On Ministerial Exception Doctrine

In a case similar on its facts to the Supreme Court's Hosanna-Tabor case, an Illinois federal district court applied the ministerial exception doctrine to dismiss an employment discrimination lawsuit filed by a former teacher at a Lutheran school. In Herzog v. St. Peter Lutheran Church, 2012 U.S. Dist. LEXIS 107229 (ND IL,Aug. 1, 2012), Janet Herzog began teaching in the Lutheran elementary school as a lay teacher in 1987, but subsequently took further course and became a "called teacher." She taught primarily secular subjects, but also held religion classes 4 days per week. The school terminated her employment, saying it was for budgetary reasons. Herzog however charged discrimination on the basis of age, sex and marital status.

President's Faith-Based Advisory Council Will Focus This Year On Human Trafficking

The White House reports that this year’s President’s Advisory Council on Faith-based and Neighborhood Partnerships held its first meeting on  July 30-31st at the White House.  After extensive briefings on the topic at the meetings, the members agreed that their focus this year will be on the issue of human trafficking.

British Court Says 10-Year Old Can Change Religions Over Objection of Her Mother

The Telegraph yesterday reported on an interesting decision by a British trial court judge on whether the 10 year old daughter of divorced parents may convert from Judaism to Christianity (her father's current religion) over the objection of her mother. Both parents were Jewish during the marriage, but after the breakdown of the marriage the father became a member of the Anglican Church.  The two children from the marriage attended church with the father on alternate weeks when the children were with him under a shared parenting arrangement. The daughter decided she wished to convert after attending the "New Wine" festival with her father.  In In the Matter of C a Child, (Romford Co., May 11, 2012), the court refused to prohibit the father from presenting the child for baptism. The judge wrote, in part:

I accept the evidence of the mother that in her eyes the baptism of a child has much greater significance in that it can be seen as demonstrating a rejection of her Jewish faith.... but it is very clear to me that neither the mother nor the grandparents have made any real effort to see this from the point of view of what is best for the child....

It may be some comfort both to the mother and to the grandparents if I set out my understanding of Jewish law on this topic although I stress that since I have received no expert evidence on this issue what follows has played no part in my decision making process. My understanding of Jewish law is that a person who is born a Jew cannot deprive himself of his Jewish status. Christian baptism does not have any effect on that status. The purported act of conversion to Christianity simply has no legal effect and C would therefore be free to resume her Jewish faith at any time if she wished to do so....

While the mother has the care of C she receives no instruction in the Jewish faith, she does not attend the synagogue on any regular basis and only experiences minimal exposure to Jewish religious practises in the home. I fully accept that by virtue of being born of as Jewish mother C has acquired a Jewish heritage which she will never lose, but that is fundamentally different to her acquiring a Jewish faith. I do not accept the implied assertion in the letter from Rabbi Brandon that these are one and the same thing.

In another interesting twist, the court barred the parents from showing a copy of the court's opinion to their child and instead required that the explanation given to the child take the form of a letter that the judge wrote to the child and attached to the decision.

6th Circuit: County's Ban of Creche On Road Median Violated Sponsor's Free Speech Rights

Satawa v. Macomb County Road Commission, (6th Cir., Aug. 1, 2012) involves a dispute over a creche that a family, each Christmas for over 60 years, has placed on a 60 foot wide median of a busy 4-lane road in Warren, Michigan. When the Freedom From Religion Foundation objected to the creche in 2008, the county ordered it removed. The county continued to deny a permit for erection of the creche, and one of the family members sued.  The court, reversing the district court in significant part (see prior posting), held that the county's action violated plaintiff's free speech and equal protection rights.  The road median here, which also contained benches, a plaque, displays and a gazebo, is (like a park) a traditional public forum.  The government may thus ban expression there only if it has a compelling interest. While compliance with the Establishment Clause would be a compelling interest, here the creche did not violate the Establishment Clause since it was a private expression of religious beliefs-- not endorsed by the government-- on property that had been opened to the public for speech. The court however rejected plaintiff's claim that in denying a permit for the creche the county itself was religiously motivated in violation of the Establishment Clause.

USCIRF Commissioners Harsher On Russia's Religious Liberty Record Than State Department

Two commissioners of the U.S. Commission on International Religious Freedom on Tuesday published an op-ed in the Moscow Times-- Russia's only daily English language  newspaper-- highly critical of Russia's policies on religious liberty. USCIRF Chair, Katrina Lantos Swett, and USCIRF Commissioner Robert George said in part:

[I]n at least one key area, religious freedom, Russia has not changed in many respects. This assessment should provoke serious discussion as the United States faces decisions about its relationship with its former Cold War foe....

Over the past decade, the Kremlin has exploited legitimate security concerns about violent religious extremism by restricting the rights of nonviolent religious minority members. Its major tool is an extremism law. Enacted in 2002, the law imposes sanctions on religious extremism, which it defines as promoting the "exclusivity, superiority, or inferiority of citizens" based on religion. The law now applies to peaceful actors and actions.....

Simply stated, security concerns aren't the sole driver of Russia's religious freedom abuses. All too often, security is a pretext for unacceptable religious repression. Authorities view certain groups, particularly those seeking converts, as threats to the country's religious and cultural identity as embodied in the Russian Orthodox Church's Moscow Patriarchate.

Their assessment appears harsher than the one appearing in the U.S. State Department's recently-released 2011 Report on International Religious Freedom (see prior posting). The State Department's section on the situation in Russia said in part:

The constitution provides for freedom of religion; however, other laws and policies restrict religious freedom by denying some groups legal status and misidentifying their literature as extremist.  In practice the government generally respected religious freedom, but some minority denominations continued to experience difficulties.

Austrian Justice Minister OKs Circumcisions

EJP reported yesterday that in Austria, the country's Justice Minister Beatrix Karl has written a letter to state officials in the province of Voralberg assuring doctors that they will not face prosecution for performing circumcision of boys, whether for religious or other reasons. Doctors needed the issue clarified after Voralberg's premier, Markus Wallner, in the wake of a German court decision banning circumcision of children for religious reasons (see prior posting), advised doctors against performing the procedure in Austria.

In Texas Supreme Court Primary, Incumbent Defeated By Advocate of Religious Displays On Public Property

In the Republican primary in Texas last Tuesday, incumbent state Supreme Court Justice David Medina lost his bid to run for re-election in a challenge by the Tea Party-backed candidate, John Devine.  The Southeast Texas Record reports that the final vote tally showed Devine receiving 53% of the vote. As previoiusly reported, in 1995 Devine was elected to be a state trial court judge after campaigning on a platform of placing Christianity back into government. He gained national attention when he fought to keep a painting of the 10 Commandments hanging in his court room. He also was at the center of an Establishment Clause case when he and his court reporter solicited private donations to refurbish a courthouse grounds religious-themed monument that included display of a Bible. In the 1980's Devine was known as an anti-abortion activist.  Medina, who had been appointed in 2004 by Gov. Rick Perry, was backed by the Republican establishment and was strongly favored in a poll of the Texas State Bar. The Fort Worth Star Telegram, reviewing the candidates earlier this year, reported that Medina ha been found by the state ethics commission in 2009 to have improperly used some of his campaign funds for personal commuting expenses.  Also he and his wife had initially been indicted in connection with a fire at their home in 2007, but the charges were then dropped.

In Canada, Suit Filed Over Opening Council Meetings With Lord's Prayer

Backed by the advocacy group Secular Ontario, in Canada on Monday a resident of Grey County, Ontario filed a lawsuit seeking to require the Grey County Council to end its practice of opening its sessions with the recitation of the Lord's Prayer. According to the National Post, Secular Ontario has written 18 cities, towns and counties seeking to end use of the Lord's Prayer to open their meetings. Seeking $5000 in damages and an order ending the practice, plaintiff Peter Ferguson says that the use of the opening prayer violates his freedom of conscience and religion protected by the Charter of Rights and Freedoms. Over a month ago, a similar challenge was filed by another plaintiff against the Petersborough (ON) City Council.

Indiana High Court Remands Church Property Case For Trial On Implied Trust Issue

In Presbytery of Ohio Valley, Inc. v. OPC, Inc., (IN Sup. Ct., July 31, 2012), the Indiana Supreme Court, in a 3-2 decision, held that the Presbyterian Church (USA) had failed to show that an express trust attached to property of Olivet Presbyterian Church, a congregation that broke away from the parent body over doctrinal differences.  However, the court remanded the case for trial on the issue of whether an implied resulting trust on the congregation's property had been created by Olivet remaining a member of PC(USA) for 25 years after the parent body placed language in its governing documents (the Book of Order) providing that local church property was to be held in trust for PC(USA). In an opinion written by Chief Justice Dickson, the majority adopted the "neutral principles of law" approach for resolving all church property disputes in Indiana. Justices Sullivan and Massa, in a brief dissenting opinion, agreed with the Court of Appeals decision-- which held that the congregation was bound by PC(USA)'s property trust clause. [Thanks to Michael E. DiRienzo for the lead.]

Grocery Store's Customer Seeks Religious Accommodation of Racist Views

The Big Sandy & Hawkins (TX) Journal yesterday reported on a religious accommodation lawsuit against a grocery store filed pro se in April by a customer who objected on religious grounds to his purchases being bagged by an African-American employee. When this happened a second time, the store owner called the police who issued plaintiff, DeWitt Thomas, a criminal trespass warning. Thomas says his religion is "Vedism Braminism" which he says prevents him from "striking hands" with an "Untouchable." Store owner Keith Langston says that he will not tolerate racism and that Thomas frightened his employees.

Many Claims Dismissed In Establishment Clause Suit On Philosophy Course Content

In Smith v. Arizona, (D AZ, July 31, 2012), an Arizona federal district court dismissed many, but not all, of the claims in a lawsuit in which a student at Maricopa Community College alleged that the philosophy course she took-- titled Introduction to Ethics-- was taught by the instructor "solely to indoctrinate her students with her Christian worldview" in violation of the Establishment Clause. Claims against the state of Arizona an the State Board of Education were dismissed on 11th Amendment grounds.  Plaintiff's claims for injunctive and declaratory relief were dismissed as moot, since she has already completed the course and has no reason to repeat it in the future. As to plaintiff's claim for damages, the court found that the individual defendants have qualified immunity on the Establishment Clause claim because "Plaintiff has not pointed to any specific actions by Defendants that obviously violated a clearly established right under the Establishment Clause or to any cases indicating that a college level Ethics course cannot be taught with reference to a specific  religion." However the court permitted plaintiff to move ahead with her damage claim for Establishment clause violations against the college and the college district, as well as her claim against the college for breach of contract. (See prior related posting.)

Plaintiff, Fired For Wearing Christian Lanyard, Can Proceed With Suit

In Hickey v. State University of New York at Stony Brook Hospital, 2012 U.S. Dist. LEXIS 105182 (ED NY, July 27, 2012), a New York federal district court denied cross-motions for summary judgment in a Title VII religious discrimination and retaliation lawsuit by a painter in the hospital's Physical Plant Department whose employment was terminated  for insisting on wearing a lanyard around his neck printed with the phrase "I ♥ Jesus." Attached to the lanyard was a plastic badge  holder with hand written religious messages on it. The hospital claimed this conflicted with its uniform policy.  It also alleged other job performance issues, including alleged proselytizing.

Indian Court Sentences 22 In Another Prosecution Over 2002 Gujarat Riots

According to AFP and BBC, in India, in another case growing our of the 2002 Hindu-Muslim riots in the state of Gujarat, a court this week sentenced 21 defendants to life in prison for attempted murder, arson and rioting. An additional defendant, a former police officer, was sentenced to one year in prison for dereliction of duty.  61 defendants were acquitted for lack of evidence. This case involved the Dipda Darwaza massacre in which Hindu rioters attacked a Muslim family, locked them in their house and set it ablaze, killing 11, after 60 Hindu pilgrims traveling in a train died in a blaze of disputed origin. In April in another case growing out of the same riots, 23 others were convicted. (See prior posting.) A total of 84 people have been convicted in 4 previous cases involving the riots in which 1,000 to 2,000 people-- mostly Muslims-- died.

State Department Releases 2011 International Religious Freedom Report

As reported by CNN, yesterday the State Department released its International Religious Freedom Report for 2011. Ambassador -at-Large for International Religious Freedom Suzan Johnson Cook provided a press briefing (full text) on the report. Secretary of State Hillary Clinton also spoke about the report at the Carnegie Endowment for International Peace (full text of remarks). The State Department presents the report in an interactive format on its website-- setting out the Executive Summary and providing links to either go to the full report for a specific country or build a report by individual topics across countries chosen by the online user. The Executive Summary says in part:

Governments restricted religious freedom in a variety of ways, including registration laws that favored state-sanctioned groups, blasphemy laws, and treatment of religious groups as security threats. The report focuses special attention on key trends such as the impact of political and demographic transitions on religious minorities, who tended to suffer the most in 2011; the effects of conflict on religious freedom; and the rising tide of anti-Semitism. Impacted groups, to name just a few, included Baha’is and Sufis in Iran; Christians in Egypt; Ahmadis in Indonesia and Pakistan; Muslims in a range of countries, including in Europe; Tibetan Buddhists, Christians, and Uighur Muslims in China; and Jews in many parts of the world.

The U.S. Commission on International Religious Freedom issued a release welcoming the State Department's report and urging it to move promptly to designate "countries of particular concern" for this year pursuant to the International Religious Freedom Act. It also urged the State Department to follow up its designation with "vigorous U.S. diplomatic activity."

Defendants In Amish Beard Cutting Assaults Reject Plea Bargain

In northern Ohio last year, 16 members of an Amish community were indicted for conspiracy to violate the federal Matthew Shepard-James Byrd Hate Crimes Prevention Act and the federal witness tampering law. (See prior posting.) The defendants, members of a break-away Amish group, are charged with assaulting other Amish and forcibly cutting their hair and beards. AP reported yesterday that the defendants have rejected the government's offer of a plea bargain that would have given many of them sentences of 2 to 3 years.  If convicted, they face sentences of 20 years or more in prison. Defendants claim the attacks involved issues of internal church discipline and not anti-Amish bias.

In Russian Court, Punk Rock Defendant Criticizes Church Support For Putin

As previously reported, in Russia earlier this year three members of a women's punk rock band,  calling itself Pussy Riot, were arrested after they entered a nearly empty Christ the Savior Cathedral and performed an obscene "punk prayer." Interfax yesterday reported on a court hearing for Maria Alyokhina, one of the defendants. Alyokhina told the court:

The indictment says that I committed hooliganism motivated by religious hatred and animosity and hatred toward Orthodox believers. This assertion is fundamentally unclear to me. The aim of our performance was to draw the attention of the Russian clergy and the prior of Christ the Savior Cathedral [to] Patriarch Kirill ... [and] his repeated public statements that the Orthodox believers must vote for Putin. I am an Orthodox believer but my political views are different.... As a representative of my generation, I have other questions about the relations between the church and the state, to which I sincerely want to get answers from Father Kirill and count on his wisdom. I thought that the church loves its children, but it turns out that there is a division here, and the church only loves those children who believe in Putin.

Pastor and Church Indicted Over Mock Kidnapping Of Youth Group Members

According to the Harrisburg (PA) Patriot-News, on Friday Dauphin County, Pennsylvania prosecutors charged a church and its youth pastor with false imprisonment and assault for a mock kidnapping they staged to teach teenagers about the dangers faced by some missionaries in carrying out their work. The Glad Tidings Assembly of God Church and its youth pastor Andrew Jordan arranged for four men to burst into the youth group meeting, one carrying a real, but unloaded, gun. The youths were forced into a van with pillow cases over their heads and driven across the parking lot to the pastor's house, where they were led to a frightening interrogation room and questioned for 30 seconds each before being released. The mother of a 14-year old girl who was taken in the mock exercise reported the matter to the police. The district attorney said that several of the children were terrorized by the experience. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Vijaykumar Shrikrushna Chowbe, Struggle to Combat ‘Graded Inequality’ in India: Conflict Without Consensus, (July 24, 2012).
• Ian C. Bartrum, The Ministerial Exception and the Limits of Religious Sovereignty, (Where Law and Religion Meet - The Online Journal of the Emory Center for the Study of Law and Religion blog, July 19, 2012).
• Caroline Mala Corbin, The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, (Northwestern University Law Review, Vol. 106, No. 2, p. 951, 2012).
• Craig A. Stern, The Heart of Mens Rea and the Insanity of Psychopaths, (July 26, 2012).

From SmartCILP:

• Alex Tallchief Skibine, Towards a Balanced Approach for the Protection of Native American Sacred Sites, 17 Michigan Journal of Race & Law 269-302 (2012).
• Symposium: The State of Church and State. Articles by Paul Cliteur, Aernout J. Nieuwenhuis, Yaniv Roznai, Serkan Yolcu, Augusto Zimmermann and Lael Daniel Weinberger. [Abstracts]. 10 I.Con: International Journal of Constitutional Law 127-241 (2012).
• The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance? Introduction by Nicholas P. Cafardi; articles by Bruce Ledewitz, Samuel J. Levine, Zachary R. Calo, Mark C. Rahdert and Richard Albert; response by Christopher C. Lund. 87 Chicago-Kent Law Review 707-897 (2012).

Indian Court: Child Marriage Ban Overrides Hindu Marriage Law

In Devi v. State, (Delhi H.C., July 27, 2012), a 3-judge panel of the Delhi High Court at New Delhi, India ruled that the Prohibition of Child Marriage Act takes precedence over the Hindu Marriage Act.  A Hindu marriage contracted with a female under 18 or a male under 21 is voidable at the option of the spouse who was a child at the time of the marriage, even though the marriage is not voidable under the Hindu Marriage Act. The Hindustan Times, reporting on the decision, says that it will also impact Muslim marriages. Under the Muslim Personal Law, the minimum age for marriage of either boys or girls is 15.

Recent Prisoner Free Exercise Cases

In Curtis v. Caldwell, 2012 U.S. Dist. LEXIS 100969 (ED MI, July 20, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 101501, June 26, 2012) and dismissed on various grounds, including failure to exhaust administrative remedies, an inmate's claim that his request for Native American religious services had been denied.

In Cobb v. Mendoza-Powers, 2012 U.S. Dist. LEXIS 102899 (ED CA, July 24, 2012), a California federal magistrate judge recommended dismissal of an inmate's challenge to the prison's grooming policy. Plaintiff had made a religious vow not to comb or shave his hair. While the 9th Circuit in another case had found the grooming policy violates RLUIPA, plaintiff brought only a 1st Amendment challenge.

In Bradford v. Lee, 2012 U.S. Dist. LEXIS 102887 (WD LA, July 24, 2012), a Louisiana federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 102886, June 20, 2012) and dismissed an inmate's complaint that his rights under RLUIPA and the 1st Amendment were infringed when he was denied access to church services on one or more occasions by a prison guard.

In Hall v. Love, 2012 U.S. Dist. LEXIS 101337 (SD IL, July 23, 2012), an Illinois federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 103647, June 27, 2012) and permitted a Muslim inmate to proceed with his claim that his free exercise  rights were violated when he was excluded from Ramadan and Jumu'ah services.

In Brewer v. Tesinsky, 2012 U.S. Dist. LEXIS 103984 (CD CA, July 24, 2012), a California federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 103893, March 14, 2012) and permitted a Muslim pre-trial detainee to proceed with certain of his 1st Amendment and RLUIPA claims alleging that jail authorities failed to accommodate his religious vegetarian diet.

In Manges v. Harman, 2012 U.S. Dist. LEXIS 103506 (ND IN, July 24, 2012), an Indiana federal district court permitted an inmate to proceed with his 1st Amendment damages claim and his retaliation claim growing out of the alleged denial to him of the opportunity to attend Eastern Orthodox services and turning away a priest who had come to conduct services.

Church's Suit Over Texas Law On Recall Petitions Dismissed

Hoyt v. City of El Paso, Texas, 2012 U.S. Dist. LEXIS 104501 (WD TX, July 10, 2012), presents a claim by an El Paso church and its pastor that Texas and El Paso city officials have chilled the church's right to circulate recall petitions aimed at the city's mayor and two city council members because of their role in restoring health benefits to same-sex and unmarried domestic partners of city employees. (See prior posting.) The court dismissed the complaint finding that the challenged election law only bars corporations from circulating petitions when doing so amounts to a political contribution and that plaintiffs allege only a subjective fear of enforcement.

Ministerial Exception Applies Even Though Faculty Are Not Members of Seminary's Religion

In two related cases (but decided by panels that had only one judge in  common), the Kentucky Court of Appeal has held that the ministerial exception applies in two lawsuits by a seminary's faculty against the school, even though the plaintiffs are not members of the religious denomination-- Disciples of Christ-- that operates the seminary. Lexington Theological Seminary in 2009 declared a financial emergency, eliminated tenure and reduced the number of faculty and staff. In  Kant v. Lexington Theological Seminary, (KY CT App., July 27, 2012), a Kentucky appellate court in a 2-1 decision dismissed a breach of contract suit brought by a Jewish faculty member (a Jewish studies scholar) who was dismissed in the reorganization. The court, in an opinion by Judge Moore, held first that:

an inquiry into the rationale for LTS’s decision making as to who will teach its students—all of whom attend there with a desire to become pastors or ministers—would be an inquiry into an ecclesiastical matter by this Court.

It then held that the suit should also be dismissed under the ministerial exception doctrine, reasoning:

Because Kant’s primary duties involved teaching religious-themed courses at a seminary, his position was one that prepared students for Christian ministry.... Given his position as a faculty member teaching at a seminary, Kant’s personal views are not determinative of the function he served. Rather, we review the function of his position: teaching future Christian ministers primarily on Judeo-Christian subjects and culture. Kant’s personal faith and beliefs do not clash with the actuality that the classes he taught at LTS were for the purpose of preparing future church leaders of the Christian faith.

Chief Judge Acree filed a concurring opinion. Judge Keller dissented, arguing that there was a question of fact as to whether Kant was merely teaching about religion, or instead was teaching the Christian religion as an article of faith. He said: "in the absence of any evidence regarding the actual content of Kant's courses, I cannot conclude that Kant was a "minister" for purposes of the ministerial exception.

The second case, Kirby v. Lexington Theological Seminary, (KY Ct. App., July 27, 2012) involved a suit by a faculty member who belonged to the Christian Methodist Episcopal Church, but taught solely religious courses at the seminary. In a unanimous decision, the court dismissed the suit applying the ministerial exception doctrine. Judge Caperton wrote:

Given the Seminary’s commitment to Christian unity and an ecumenical spirit reflected in denominational diversity and interfaith inclusiveness, we fail to find persuasive Kirby’s argument that his lack of ordination or his lack of membership in the Christian Church (Disciples of Christ) is determinative of his status at the Seminary.

Chief Judge Acree filed a concurring opinion. The Louisville Courier Journal reports on the decision.

School Parents In NY's Rockland County Seek Ouster of 7 Orthodox Jewish Board Members

According to today's New York Times, in Rockland County (NY)'s East Ramapo Central School District, 14 Black and Hispanic parents of public school students have petitioned the State Education Department seeking removal of 5 Orthodox Jewish members of the school board.  Even though very few Orthodox Jews send their children to public schools, 7 of the 9 school board seats are held by Orthodox Jews because of their well-organized turnout in elections.  The state education commissioner can remove local school board members for willful misconduct or neglect of duty. Petitioners want a special monitor appointed to oversee the district after long-running disagreements between public school parents and the school board.  The parents claim that the school board is favoring the Orthodox Jewish community by using state resources to place students with disabilities in private schools, and in attempts to sell two former school buildings to yeshivas at below-market value. The district has laid off 25% of its teachers in recent years. School board president Daniel Schwartz charged that suggesting Orthodox Jewish board members could not deal with the needs of non-Jewish children is offensive and anti-Semitic. (See prior related posting.)

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.]