Recent Prisoner Free Exercise Cases

In McKinley v. Maddox, (10th Cir., Aug. 14, 2012), the 10th Circuit reversed the district court and remanded for further proceedings an inmate's complaint that he was denied the right to attend off-site church services for a month, with no services being offered at his correctional facility.

In Sorenson v. Minnesota Department of Corrections, 2012 U.S. Dist. LEXIS 107912 (D MN, Aug. 2, 2012), a Minnesota federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 112495, June 20, 2012) and rejected free exercise, RLUIPA and 14th amendment claims by plaintiff who complained that while he was serving a state prison sentence he was not allowed to attend his father's funeral.

In Albaiaty v. Pocwierz, 2012 U.S. Dist. LEXIS 113509 (D NE, Aug. 13, 2012), a Nebraska federal district court dismissed, with leave to amend, an inmate's complaint that prison authorities would not allow him to have an English copy of the Qur'an brought to him by his family in addition to, or in exchange for, an Arabic language version he currently has.  He claimed that inmates are allowed to have several copies of the Christian Bible, but only one of the Qur'an.

In Paladino v. Newsome, 2012 U.S. Dist. LEXIS 113748 (D NJ, July 31, 2012), a New Jersey federal district court rejected an inmate's claim that his free exercise rights were infringed when he was denied the opportunity to attend religious services while in administrative segregation.

In Patterson v. West Virginia Regional Jail and Correctional Facility Authority, 2012 U.S. Dist. LEXIS 112686 (D WV, Aug. 10, 2012), a West Virginia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 112801, July 3, 2012) and dismissed generalized religious discrimination claims by an inmate, apparently involving access to Muslim or kosher meals coordinated with Ramadan fasting, access to a Qur'an and a Muslim spiritual leader.

In Streater v. Thaler, 2012 U.S. Dist. LEXIS 113448 (ED TX, Aug. 13, 2012), a Texas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 113612, July 1, 2012) and dismissed for failure to exhaust administrative remedies the portion of an inmate's retaliation complaint that alleged he was placed in lock down for four days without privileges, and was denied the right to attend Ramadan services.

In Carter v. Unnamed Wallens Ridge State Prison Employees, 2012 U.S. Dist. LEXIS 116060 (WD VA, Aug. 16, 2012), a Virginia federal district court dismissed as moot an inmate's complaint that he had been prevented from participating in the Ramadan celebration. The court refused to continue the action so plaintiff could exhaust his administrative remedies on complaints about the quality of food during Ramadan.

In Gray v. Arpaio, 2012 U.S. Dist. LEXIS 115498 (D AZ, Aug. 16, 2012), an Arizona federal district court dismissed a Muslim inmate's complaint regarding denial of a religious diet.

Madonna And Concert Organizers Sued In Russia For Offending Believers and Cultural Traditions

The Huffington Post, Interfax, and Businessweek all report yesterday and today on a 333 million ruble ($10.4 million US) lawsuit filed in a Russian court against the U.S. pop star Madonna for offending the feelings of believers and the cultural traditions of city residents during her Aug. 9 concert in St. Petersburg.  Also named as defendants were the concert organizer PMI Corp. and the venue at which it was held, Peterburgsky Sports and Concert Complex.  At the concert, Madonna championed equal rights for gays in protest of legislation passed earlier this year by St. Peterburg banning "propaganda of sodomy, lesbianism, bisexualism and transgenderism, and pedophilia to minors."  At the concert she apparently also stomped on an Orthodox cross, asking everyone in the audience wearing pink bracelets to raise their hands.  The suit was brought by members of the Trade Union of Russian Citizens and of Narodny Sobor. Plaintiffs' lawyer, Alexander Pochuyev, responding to criticism that characterized the lawsuit as medieval behavior, said that plaintiffs have used: "a civilized, modern and popular way of defending their rights - by filing a lawsuit. No one burned anyone at the stake or used the inquisition. Modern civilization requires religious tolerance and respect of other values."

EEOC Wins Settlement In Religious Accommodation Suit

The EEOC announced this week a settlement agreement in a religious discrimination lawsuit it had filed in an Indiana federal district court against Magnetics International, Inc.  The EEOC alleged that Magnetics fired Daniel Bewley who was employed as a laborer rather than offering a reasonable accommodation for his religious needs.  Before accepting the job, Bewley, a Christian, had told the company that he needed to attend church at least every other Sunday.  Subsequently however the company insisted that he work on consecutive Sundays. Under the consent decree, Magnetics will pay $30,000 in damages, will track and respond to requests for religious accommodation for the next three years, and will post a non-discrimination policy and institute employee training on non-discrimination. [Thanks to Steven H. Sholk for the lead.]

Christian School's Zoning Challenge Dismissed On Ripeness Grounds

In Tree of Life Christian Schools v. City of Upper Arlington, (SD OH, Aug. 16, 2012), an Ohio federal district court dismissed on ripeness grounds a lawsuit by a private Christian school that unsuccessfully sought a conditional use permit to operate in a commercial office building. The suit asserted RLUIPA as well as 1st and 14th Amendment and state constitutional claims. The school had been advised by the city that rezoning, rather than a conditional use permit application, would be required, but the school never initiated the rezoning process. The court concluded that the city should have the opportunity to conduct the type of in-depth review of the impact of the use of the building that would occur in a rezoning hearing. (See prior related posting.)

New Study Surveys Regulation of Religion In Denmark

In Denmark, the University of Copenhagen's Centre for European Islamic Thought this month published a 234-page study titled Danish Regulation of Religion, State of Affairs and Qualitative Reflections. The study is part of the European Union's RELIGARE project. The new report surveys four areas: (1) religion and family in Denmark; (2) religion and the labor market in Denmark; (3) religion and public space in Denmark; and (4) state support for religions in Denmark. [Thanks to Niels Valdemar Vinding via Religionlaw for the lead.]

Russian Punk Rockers Get 2 Years For Hooliganism Motivated By Religious Hatred

In Russia today, three members of the feminist Pussy Riot punk-rock band were convicted on charges of hooliganism motivated by religious hatred and each were given a 2 year prison sentence. The charges carried a maximum sentence of 7 years, and the prosecution had asked for 3 years.  The three had been arrested after they entered a nearly empty Christ the Savior Cathedral and performed an obscene "punk prayer" in protest of the Russian Orthodox Church's political support for Vladimir Putin. (See prior posting.) The trial has been widely followed around the world as a test of democracy and free expression in Russia. Describing today's Moscow court proceedings, the Washington Post said:

The judge’s recitation Friday dwelled on what sounded like an offense to the church rather than the state. She quoted at length witnesses who said they were believers deeply offended by the one-minute performance.

One witness said that the young women violated the Cathedral of Christ the Savior dress code with their short dresses and that women were expected to behave modestly in church. Another said public prayers were not permitted in the cathedral without the presence of a priest. If that wasn’t bad enough, one witness said, the performance occurred just before Lent.

UPDATE: Interfax reported (8/17) that the Russian Orthodox Church has asked the Russian authorities "to show mercy within the law towards the convicted" Pussy Riot band members. Meanwhile The Examiner (9/18) reprints an English translation of a recent Open Letter (full text in Russian) in which nearly 200 Russian lawyers and jurists argue that the band members should have been charged at  most merely with the minor offense under Art. 5.26 of the Russian Code of Administrative Offenses of Insulting Religious Feelings of Citizens.

Jury Awards $1.6 Million Damages For Hotel Owner's Actions Against Jewish Group

A jury in a California state trial court this week awarded $1.2 million in compensatory damages and over $400,000 in punitive damages to members of the Friends of Israel Defense Forces for violation of the anti-discrimination provisions of California's Unruh Civil Rights Act by a hotel at which the group was holding an event.  As reported by the New York Times and the Los Angeles Times, plaintiffs claimed that the owner of the Santa Monica Hotel Shangri-La, Tehmina Adaya (a Pakistani-born Muslim), attempted to evict the Jewish group (repeatedly using profanity), but finally allowed them to stay if they removed all signage and literature identifying the purpose of the event. A former employee sad that Adaya feared her family would cut off financing from her if they learned there was a Jewish event at the hotel. Adaya denied the charges.

Justice Department Sues Florida Prisons Over Lack of Kosher Meals For Religious Accommodation

As reported by the Huffington Post, on Tuesday the U.S. Department of Justice filed suit in federal district court against the Florida Department of Corrections claiming that its refusal to supply kosher meals (except in a small pilot program in one facility) to those who have a religious need for them violates the Religious Land Use and Institutionalized Persons Act.  The complaint (full text) in United States v. Secretary, Florida Department of Corrections, (SD FL, filed 8/14/2012), alleges that Florida's "dietary policies force prisoners with a religious basis for consuming kosher meals to violate their core religious beliefs on a daily basis." Florida prisons discontinued their prior Jewish Dietary Accommodation Program in 2007.

Saudi Government Agency Files 166 Objections, Many Religion-Based, To Proposed New gTLD's

As previously reported, in June the Internet Corporation for Assigned Names and Numbers (ICANN) published a list of who has applied for which new generic Top-Level Domain (gTLD) names.  At least 15 of the proposed new gTLD's have religious connotations.  With the deadline for general comments on the applications recently extended to September 26, already a number of objections, as well as supporting statements, have been filed for certain of the religious themed URL suffixes. Today Online reported yesterday that Saudi Arabia's Communication and Information Technology Commission has filed 166 objections.  The gTLD's that the Saudi's oppose include .catholic (because other churches use the term in their names) and .islam (because the applicant cannot represent the entire Muslim community).  The Saudi Commission states more generally:

... we believe that any and all gTLD applications for any name in relation to religion or a specific community should be presented to representative members of that community for evaluation and the view of such members should be taken into account when granting or denying the application. If this cannot be accomplished then these community and religious sensitive names/words should be restricted completely from being used as gTLD's altogether.

The Saudis have also filed objections to proposed gTLD's that are associated with items prohibited by Islamic law, such as .tattoo, .bar, .pub, .gay, .vodka.  The Saudis also oppose .bible because "with a number of religions, and groups within them, disagreeing over the provenance and content of the bible one group or individual should not be permitted to define what the bible is, or is not, on the world wide web."

An examination of the objections which have been filed with ICANN can be searched from this website.  To view all the filings by the Saudis, search by "Name" for "Abdulmjid". Searches can also be made by "String" to find comments on any of the other proposed gTLD's.  For example, an individual concerned about the Church of England has objected to the Vatican's application for the .catholic gTLD. [Correction: an earlier version incorrectly attributed this objection to the Church of England itself.]  [Thanks to Alliance Alert for the lead.]

4th Circuit Grants En Banc Review In Pregnancy Center Compelled Speech Case

On Wednesday, the U.S. 4th Circuit Court of Appeals granted en banc review in Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore. (Full text of court order.) In the case, a 3-judge panel (in a 2-1 decision) in June struck down on free speech grounds a Baltimore ordinance that requires "limited-service pregnancy centers" to post signs announcing that that they do not provide or make referrals for abortion or birth control services. (See prior posting.) The Center for Reproductive Rights issued a press release applauding the decision to rehear the case.

Disciplinary Office Seeks Suspension of Lawyer For Anti-Catholic Statements In Court Filings

As reported by the St. Paul Pioneer Press and by MinnLawyer Blog, the Minnesota Office of Lawyers Professional Responsibility on Wednesday filed with the Minnesota Supreme Court a petition seeking suspension from practice of attorney Rebekah Nett.  The petition alleges a pattern of bad faith litigation and reckless and harassing statements.  Among the statements at issue are a number of anti-Catholic slurs directed at the federal bankruptcy court judge and several federal bankruptcy trustees. This excerpt from the 26-page petition to the state Supreme Court gives a flavor of the statements involved:

Respondent's statements ... that Judge Dreher is a Catholic judge, that Judge Dreher is a black robed bigot, that the Chapter 7 trustee had engaged in lies, deceit, treachery, and connivery... , that the fact that [3 U.S. trustees and the judge] ... are of the same race and religion demonstrates their conspiracy and deceitful practices to hurt the debtor, that ... court systems... are composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church ... lacked a basis in law or fact and were made with knowledge of their falsity or with reckless disregard at to their truth or falsity.

(See prior related posting.)

German Court Refuses To Ban Demonstrators' Caricatures of Muhammad

AP reports that in Germany, a Berlin administrative court yesterday rejected an emergency appeal by three mosques that are seeking to prevent the right wing "Citizens Movement - Pro Germany" from displaying caricatures of the Prophet Muhammad at a planned demonstration this weekend.  The slogan for the Berlin demonstration is "Islam does not belong in Germany - Stop Islamization." The court ruled that the caricatures are protected by free expression guaranties, and do not violate laws against slander or inciting hate or violence. [Thanks to Alliance Alert for the lead.]

Shooter At Family Research Council Was Supporter of LGBT Rights

The Washington Post report today on the 28-year old man charged with shooting and wounding a security guard at the D.C. office of the Family Research Council suggests that he was motivated by the Council's opposition to expansion of rights for gays and lesbians.  According to the FBI affidavit (full text) seeking to show probable cause to charge Floyd Lee Corkins II, the shooter told the guard, before opening fire, "I don't like your politics."  Corkins' backpack contained 15 sandwiches from Chick-fil-A, whose president recently made highly publicized statements in opposition to same-sex marriage.  Corkins' parents told investigators that Corkins has strong opinions about those he believes do not treat homosexuals in a fair manner. Corkins has been volunteering at a community center that serves LGBT clients.

1st Circuit Upholds Monastery's Copyright Infringement Claims As To Translations Of Religious Works

In Society of the Holy Transfiguration Monastery, Inc. v. Archbishop Gregory of Denver, Colorado, (1st Cir., Aug. 2, 2012), the U.S. 1st Circuit Court of Appeals affirmed a Massachusetts district court's copyright infringement judgment in favor of  an Eastern Orthodox monastic order. (See prior posting.)  Holy Transfiguration Monastery translated a number of ancient religious texts.  Archbishop Gregory, a former member of the Monastery, left it and formed his own monastery, the Dormition Skete, in Colorado. The Archbishop also created a website on which he posted 7 of the translations that had been produced b y Holy Transfiguration Monastery. An earlier lawsuit over the postings ended with a settlement agreement. However documents remained on the Archbishop's website, and the present suit-- for breach of contract and copyright infringement followed. The Second Circuit rejected a number of defenses raised by the Archbishop-- including contentions Monastery's Works were made for hire for the Russian Orthodox Church Outside Russia (ROCOR); that they are in the public domain; that the materials are not copyrightable; a fair use defense and a claim that the dispute was a matter of religious law outside the jurisdiction of civil courts.

Particularly at issue was a provision in the Monastic Statutes for Monasteries of ROCOR calling for transfer of monastery property to ROCOR in case of closing or liquidation of a monastery. The Archbishop claimed that this provision was triggered by the Monastery's ending of its affiliation with ROCOR.  The 1st Circuit said:

A review of the record confirms that we may apply the Monastic Statutes' plain terms without treading upon religious doctrine, church governance, and ecclesiastical laws.... Neutrally applying this plain language, we conclude that the Archbishop's position as to ROCOR's ownership holds little water.

Ft. Hood Shooter's Trial Stayed While Appeals Court Considers Forced Shaving of Defendant

The United States Court of Appeals for the Armed Forces yesterday issued an order staying proceedings in the trial of mass shooter Maj. Nidal Hasan.  According to a release from the Fort Hood Public Affairs Office, the stay was imposed while the appeals court decides whether or not the presiding judge in the military trial can order Hasan, who has grown a beard for religious reasons, to be forcibly shaved. (See prior posting.) Earlier yesterday, according to the Los Angeles Times, Hasan's lawyers told the trial court that Hasan wanted to plead guilty for religious reasons to take responsibility for his actions. Military judge Col. Gregory Gross said he was not allowed to accept a guilty plea in a capital case, but that Hasan's lawyers could still enter the plea.

UPDATE: Here is the full text of the Court of Appeals order.  It calls for the military court trial judge to respond by Aug. 22. The full text of Hasan's petition to the appeals court, which includes Hasan's legal arguments in support of the petition, is also available online.  It recites in part that "Petitioner is a practicing Muslim and has recently had a premonition that his death is imminent.  He does not wish to die without a beard as he believes not having a beard is a sin." The Los Angeles Times has further coverage.

Hungary's Ombudsman Wants Court Review Of Law On Churches

BosNewsLife reported yesterday that in Hungary, the country's Ombudsman who is elected by Parliament to protect fundamental civil rights is asking the Constitutional Court to overturn the country's recently enacted Law on the Right to Freedom of Conscience and Religion, and on Churches, Religions and Religious Community. The Constitutional Court struck down an earlier version of the law last year on procedural grounds. (See prior posting.) The law recognizes only 14 religious faiths, instead of the 300 that have previously recognized, and permits others to apply to Parliament for recognition if they have been operating in Hungary for at least 20 years. Under this provision Parliament has recognized 18 additional groups. The Ombudsman contends that the provision in the law that gives Parliament the unreviewable power to decide which groups will be recognized is "contrary to the principle of separation of power, to the right to fair procedure and to the right to legal remedy."  Formal recognition gives churches tax-free status and access to government support.  It also authorizes them to collect contributions during services and do pastoral work in jails and hospitals.

11th Circuit Orders Hearing On Standing In 10 Commandments Case

In American Civil Liberties Union of Florida, Inc. v. Dixie County Florida, (11th Cir., Aug. 15, 2012), the U.S. 11th Circuit Court of Appeals remanded to the district court for a hearing on standing a case challenging the constitutionality of a Ten Commandments statue near the entrance to the Dixie County, Florida courthouse. The individual (identified as John Doe) through whom the ACLU claims organizational standing is a North Carolina resident who was offended when he saw the statue during a trip to the courthouse to check out certain real estate records. At issue was whether the statue was the cause of  Doe's not moving ahead to purchase property in the county. Judge Edmondson dissented in part, arguing that the case should be remanded for immediate dismissal, rather than for a further hearing on standing. The Wall Street Journal reports on the decision.

Islamists Launch Online Attacks Against 2 Tunisian Olympians

AP reported yesterday that in Tunisia, Islamic fundamentalists are using social media in a campaign against two Tunisian Olympic athletes. Islamists on social media networks are calling on the Tunisian government to strip steeplechase silver medalist Habiba Ghribi of her Tunisian citizenship because her running outfit was too revealing.  Ghribi is first Tunisian woman to win an Olympic medal.   Separately, the Islamist group Ansar al Chariaa is conducting a Facebook campaign against swimmer Oussama Mellouli because he drank juice before racing during Ramadan. Mellouli won a gold and a bronze medal.

State Secrets Privilege Leads To Dismissal Of Suit For Spying On Mosques

The Los Angeles Times reports that yesterday a California federal district court dismissed a class action lawsuit that had been filed against the federal government and the FBI for planting an informant in Orange County, California mosques. The court accepted the government's assertion of the state secrets privilege-- that national security would be endangered by disclosing targets in counter-terrorism investigations. The court, however, permitted claims under the Foreign Intelligence Surveillance Act against individual FBI agents and supervisors to proceed.

UPDATE: The text of the court's opinion in Fazaga v. FBI, 2012 U.S. Dist. LEXIS 116723 (SD CA, Aug. 14, 2012) is now available.

Court Can Hear Clergyman's Claim For Unpaid Salary Due

In Crymes v. Grace Hope Presbyterian Church, Inc., (KY App., Aug. 10, 2012), a Kentucky state appeals court held that the 1st Amendment does not prevent a court from hearing a suit for unpaid salary and benefits brought by a Presbyterian pastor who was fired from his position.  The court said:

It is undisputed that Crymes is not contesting Grace Hope's termination of him as pastor. Rather, Crymes is merely seeking compensation for unpaid salary and benefits allegedly owed to him for work performed prior to his termination.... A claim for unpaid wages and benefits for work previously performed under an employment contract is not ecclesiastical and is reviewable by the court.

First Amendment Center reports on the decision.

Passenger Sues El Al After Orthodox Jewish Man Takes Her Seat To Avoid Sitting Next To A Woman

A Florida woman is suing Israel's El Al airlines, apparently in an Israeli court, for gender discrimination after a flight steward on her flight to Israel moved her to a less desirable seat further back in the plane.  As reported by Israel Hayom, Digital Journal and Arutz Sheva, Debra Ryder boarded a flight in New York and found that her assigned seat was already occupied by an ultra-Orthodox Jewish man who had moved to it to avoid sitting beside a woman passenger who was next to him in his original seat.  The man refused to move back, and a crew member asked Ryder to instead take the man's assigned seat so the flight could take off.  Ryder had chosen her original seat so she could be near a rest room to facilitate her taking medications. The seat change also resulted in her not getting the vegetarian meal she had pre-ordered. Ryder is asking for NIS 50,000 ($12,500 US) in damages .

Pastor Convicted Of Aiding Parental Kidnapping By Woman Ending Her Civil Union

Yesterday, a federal court jury in Burlington, Vermont found Kenneth L. Miller, a Beachy Amish-Mennonite pastor from Virginia, guilty of abetting an international parental kidnapping. The New York Times reports on the case in which Lisa Miller (no relation to the pastor), who had been in a Vermont civil union with another woman, sought to avoid the court-ordered child visitation rights awarded to her former partner by fleeing with her daughter first to Virginia (where she declared herself a born-again Christian), then to Canada and finally to Nicaragua. Pastor Miller helped the mother arrange to fly from Canada to Nicaragua and obtain shelter from missionaries in Nicaragua. (See prior posting.)

Pope's Butler Formally Indicted In Document Leak

Radio Vatican reported yesterday that Pope Benedict XVI's former butler, Paolo Gabriele, has been formally charged with, and will stand trial for, grand theft in the leaking of private documents about the Pope and other Curia officials to the press. The full text of the indictment in Italian is available online. Apparently Gabriele has confessed to furnishing the documents to Italian Journalist Gianluigi Nuzzi, saying that he believed the Pope was ill-informed of evil and corruption in the church. (See prior related posting.)

NYC Informed Consent Proposal To Controversial Circumcision Procedure Draws Opposition

The Forward reports today on the growing opposition in the ultra-Orthodox Jewish community to a proposed rule (full text) published last month by the New York City Health Department that would require written informed consent by parents to a controversial ritual circumcision method.  The procedure, known as metzitzah b’peh, involves use of the mohel's mouth-- rather than the more commonly used sterile pipette-- to suction blood from the circumcision site. The practice can pass dangerous herpes infection to the child. The proposed regulation would require that parents sign a form to be developed by the Health Department whenever oral suction is to be used in a circumcision of a boy under one year of age. While signing of the consent form does not violate Jewish law, but ultra-Orthodox rabbinic leaders object to the health department's proposed form that describes the procedure as dangerous.  A Health Department vote on the proposal is scheduled for Sept. 13. (See prior related posting.)

RLUIPA Claim For Delay In Granting Zoning Variance Can Move Ahead

In Israelite Church of God in Jesus Christ v. City of Hackensack, (D NJ, Aug. 9, 2012), a New Jersey federal district court held that plaintiff church has made out a prima facie case under the Religious Land Use and Institutionalized Persons Act.  The church alleged that the city of Hackensack delayed for 4 years its eventual approval of the church's application for a variance that the church sought so it could use a building it rented as a school to train priests. (See prior related posting.) The court also refused to dismiss claims for monetary damages under RLUIPA against two city officials in their personal and official capacities, as well as 1st Amendment claims against the two officials.

Fired Muslim Employee Sues Disney For Barring Her Hijab

The ACLU of Southern California announced yesterday that it has filed suit in a California federal district court against Walt Disney Corp. on behalf of a former employee who alleges religious harassment and refusal to accommodate her Muslim religious practice of wearing a hijab (headscarf).  The complaint (full text) in Boudlal v. Walt Disney Corp., (CD CA, filed 8/13/2012), alleges claims under Title VII of the 1964 federal Civil Rights Act, California's Fair Employment and Housing Act, and common law claims for wrongful termination, negligent retention and supervision and intentional infliction of emotional distress. The suit claims that 28-year old Imane Boudlal-- who worked at Storytellers Café at Disney’s California Adventure-- was told that her hijab would violate the Disney "look" policy for employees. She offered to wear a scarf with a Disney logo to match her uniform.  However management insisted that she either wear a large fedora on top of her hijab or work in a back area out of view of customers. She refused and was fired. The suit also alleges various incidents of offensive anti-Muslim and anti-Arab comments by Boudlal's co-workers.

Arizona Court Dismisses Challenge To State Day of Prayer For Lack of Standing

In Freedom From Religion Foundation, Inc. v. Brewer, (AZ Super. Ct., Aug. 7, 2012), an Arizona trial court judge dismissed a constitutional challenge to Arizona Governor Jan Brewer's proclamation of an annual Arizona Day of Prayer.  According to the court:

In the absence of a particularized and concrete injury suffered by Plaintiffs, their claims cannot go forward. Plaintiffs have not alleged that they filed their claims in their capacity as taxpayers, nor have they shown a direct injury, pecuniary or otherwise.

Gov. Brewer issued a statement (full text) applauding the decision which she called "little more than another sad attempt to stifle an American tradition."

Saudi Arabia Building All-Women's Industrial City To Comply With Sharia

In order to both comply with strict interpretations of Sharia law and also increase participation of women in its work force, Saudi Arabia plans to build an industrial city for female workers.  Today's Los Angeles Times and International Business Times report that the city, which will be built within Hofuf, will have sections and production halls reserved for women within factories, and will be located near residential neighborhoods to facilitate women getting from home to work. The new city is expected to attract the equivalent of $133.3 million (US) in investments and create 5,000 jobs in the textiles, pharmaceuticals and food processing industries. Additional similar cities are planned.

Advocacy Group Sends US Schools Publication On Right of Religious Expression

Liberty Counsel announced last week that it is sending a copy of its publication Patriot's Handbook of Religious Freedom in Public Schools to every school in the United States. It says it is completing delivery of 99,750 copies around the country. According to the press release: "This booklet clarifies the rights of students to pray, form Bible clubs, and engage in religious expression in public schools, including holiday celebrations and the rights of teachers, parents, and guardians." According to God Discussion, Matt Staver, chairman of Liberty Counsel, says that he believes public school teachers lack information on religious freedoms.

Recent Articles and Forthcoming Book of Interest

From SSRN:

• David R. Upham, Pope Pius Xi’S Extraordinary — But Undeserved — Praise of the American Supreme Court, (July 31, 2012).
• Lucas Swaine, Freedom of Thought, Religion, and Liberal Neutrality, (August 4, 2012).
• C.G. Bateman, Sovereignty's Missing Moral Imperative, (International Zeitschrift 8.2 (May 2012): 30-41).
• Nelson Tebbe, Government Endorsement and Disparagement, (Brooklyn Law School, Legal Studies Paper No. 287, Aug. 6, 2012).
• Meghan J. Ryan, Death and Rehabilitation, (SMU Dedman School of Law Legal Studies Research Paper, Aug. 11, 2012).
• Carlos Martínez de Aguirre, Is 'Living Together, Loving Each Other' Enough for Law? (Reflections on Some 'Brave New Families'), (International Journal of the Jurisprudence of the Family, Forthcoming).
• Jeremiah Egger, Glucksberg, Lawrence, and the Decline of Loving's Marriage Precedent, (Virginia Law Review, Vol. 98, December 2012, Forthcoming).
• Ursula Hackett, Republicanism, Catholicism and the West: Explaining the Strength of Religious School Aid Prohibitions, (APSA 2012 Annual Meeting Paper).
• Farrah Ahmed and S. Luk, How Religious Arbitration Could Enhance Personal Autonomy, (Oxford Journal of Law and Religion, Forthcoming).
• Ebrahim Moosa, Ahsan Arozullah and Aasim I. Padela, Brain Death in Islamic Ethico-Legal Deliberation: Challenges for Applied Islamic Bioethics, (December 13, 2011).
• Steven F. Friedell, The Recent Transformation of Medical Liability in Jewish Law, (August 3, 2012).

Forthcoming book:

• Jacques Berlinerblau, How to Be Secular: A Call to Arms for Religious Freedom, (Houghton Mifflin Harcourt, September 11, 2012).

Nominations For ABA Journal's Top 100 Legal Blogs Now Open

The American Bar Association Journal announced last week that it is working on its annual list of the 100 best legal blogs, and invites blog readers to use the form at this link:

to tell us about a blawg—not your own—that you read regularly and think other lawyers should know about. Or if you don't have particular blawgs in mind but think blawgs from a certain practice areas should be represented in the Blawg 100, you can use this form to let us know which ones. If there is more than one blawg you want to support, feel free to send us additional amici through the form. We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit. Friend-of-the-blawg briefs are due no later than Sept. 7, 2012.

The ABA has also urged us bloggers to tell readers about the opportunity to send messages on behalf of their favorite legal blogs. Religion Clause has made the top 100 list four out of the last five years. I invite any readers who think it belongs there again-- or who have a different favorite legal blog-- to participate in the ABA's selection process.

Recent Prisoner Free Exercise Cases

In Hennis v. Tedrow, (3d Cir., Aug. 7, 2012), the 3rd Circuit upheld dismissal of an inmate's claim that his rights were violated when he was told to cut his dreadlocks (but never in fact forced to do so) and was not provided his religious vegetarian meals during a prison lock down.

In Burton v. Clark, 2012 U.S. Dist. LEXIS 109106 (ED CA, Aug. 2, 2012), a California federal magistrate judge recommended dismissing free exercise and RLUIPA claims by an inmate whose request for a special religious diet was refused.  He sought a vegetarian diet free of excess beans, butter, margarine, peanut butter, and cheese, and claimed that the food needed to be blessed by a rabbi to make it kosher.

In Hull v. Cox, 2012 U.S. Dist. LEXIS 109272 (D NV, July 27, 2012), a Nevada federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 109273, June 6, 2012) and dismissed for failure to exhaust administrative remedies an inmate's complaint that prison officials have refused to recognize his Community of Christ religion and have not scheduled a time slot for its services.

In Gibson v. Campbell, 2012 U.S. Dist. LEXIS 111050 (D CO, Aug. 8, 2012), a Colorado federal district court agreed with a federal magistrate judge that an inmate's free exercise rights weer not infringed when authorities prohibited him from having an audio book player in his cell.

In Lemcool v. Poole, 2012 U.S. Dist. LEXIS 111131 (ND FL, Aug. 8, 2012), a Florida federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 111132, July 9, 2012), and dismissed as moot a Wiccan inmate's complaint about the inability to schedule Sabbat and Esbats and holy day worship. A change in policy now permits inmates to engage in religious exercise under staff supervision, even if an outside volunteer is unable to be present.

In Chance v. TDCJ, 2012 U.S. Dist. LEXIS 111214 (ED TX, Aug. 8, 2012), a federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 111230, July 9, 2012) and dismissed complaints of a Native American inmate regarding the adequacy of Native American religious ceremonies that are offered.  He objected to the lack of weekly group teaching ceremonies, and complained that smudging and pipe ceremonies are held only monthly with only the chaplain smoking the pipe and only water smudging. He was also denied the right to carry a lock of his deceased parents' hair in a pouch.

In Wesley v. City of New York, (SD NY, Aug. 10, 2012), a New York federal district court rejected a Muslim inmate's claim that he should be furnished Halal food prepared in accordance with his interpretation of Halal. He objected to the food that the Department of Corrections served under its religious meal program because Halal food trays were washed together with non-Halal trays.

Consent Decree Issued On City's Display of Crosses

A consent decree (full text) has been issued in Freedom From Religion Foundation, Inc. v. Town of Whiteville, Tennessee, (WD TN, Aug. 8, 2012). The decree enjoins the town and its mayor from installing decorated or undecorated stand-alone crosses on public property. (The city had placed a cross at city hall and the mayor had installed one in front of his business.) The city also agreed not to replace one arm of a cross on the city's water tower that the city had removed when FFRF complained about the display. (See prior related posting.) FFRF issued a press release announcing the consent decree.

7th Circuit: City's Litigation Position On Proselytizers' Rights Is Not An Official Policy For Sec. 1983 Liability

In Teesdale v. City of Chicago, (7th Cir., Aug. 10, 2012), the U.S. 7th Circuit Court of Appeals dismissed a suit brought by a group from a nearby Baptist church that sought to proselytize for several years at the annual festival of Chicago's St. Symphorosa Catholic Church. In the case, the district court ruled that plaintiffs' 1st Amendment rights were threatened by an official city policy that St. Symphorosa could exclude plaintiffs from the public streets on which the festival was held. (See prior posting.) The 7th Circuit agreed that the city's position was unsupportable, but concluded that since it was merely a legal argument taken in litigation, the city's position does not amount to an "official policy" that gives rise to liability under 42 USC Sec. 1983:

We acknowledge the great importance that our society accords to freedom of speech and the free exercise of religion, and that the plaintiffs’ legitimate rights to such freedoms are to be respected. Like any other member of the public, the plaintiffs can exercise their rights at future public festivals, subject to reasonable time, place, and manner restrictions. But under the particular facts of this case, there is no evidence of an official City policy that threatens the plaintiffs’ First Amendment rights, giving rise to municipal liability and entitling the plaintiffs to a declaratory judgment. A mere legal pleading or a litigating position, with nothing more, is insufficient to constitute an official policy under Monell. Without such an official policy, these plaintiffs do not have standing to obtain the declaratory judgment.

Opinion Filed Supporting Injunction Against Public Feeding In Parks

As previously reported, last month a Pennsylvania federal district judge, from the bench, 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. The court has now filed extensive findings of fact and conclusions of law to support the issuance of the temporary injunction.  In Chosen 300 Ministries v. City of Philadelphia, (ED PA, Aug. 9, 2012), the court concluded that the churches' food-sharing program is an exercise of religion under the Pennsylvania Religious Freedom Protection Act and that the new regulation places a substantial burden on that exercise of religion.  It added:

Defendants argue that because the ban "imposes no restrictions upon praying or preaching or reading the Gospel or engaging with the homeless in [Fairmount Park]," the ban does not burden plaintiffs’ free exercise.... Essentially, defendants have assumed the authority to ascribe some of plaintiffs’ religious activities more religious significance than others, irrespective of the significance that plaintiffs themselves ascribe to their own religious activities.

The court also found that the regulation is not the least restrictive means to further a compelling governmental interest.  The court said:

There is some evidence that the true purpose behind the ban is to move plaintiffs' activities away from the many cultural attractions along the Parkway in an effort to hide the City’s homeless population away from tourist eyes. Defendants vehemently deny this and do not attempt to defend the ban on this ground. Nor could they, as discriminating against unpopular groups is not a legitimate government purpose, let alone a compelling one..... [D]efendants have failed to show by a preponderance of the evidence that the ban is the least restrictive means of furthering their objectives of ending homelessness, feeding the homeless indoors, providing social services to the homeless, increasing the dignity of the homeless, or reducing the trash burden along the Parkway.

President Hosts White House Iftar Dinner

The White House reports that last night President Obama hosted his 4th annual Iftar dinner-- the evening meal that breaks the Ramadan fast for Muslims. Among those attending the dinner, held in the State Dining Room at the White House, were members of Congress and of the diplomatic corps.  In his remarks (full text), the President said in part:

... Thomas Jefferson once held a sunset dinner here with an envoy from Tunisia -- perhaps the first Iftar at the White House, more than 200 years ago.  And some of you, as you arrived tonight, may have seen our special display, ... the Koran that belonged to Thomas Jefferson.  And that's a reminder, along with the generations of patriotic Muslims in America, that Islam -- like so many faiths -- is part of our national story....

In his remarks, the President emphasized important accomplishments of Muslim women, a number of whom were in attendance, including Huma Abedin (top aide to Secretary of State Hillary Clinton).

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.