Catholic Church In Australian State Reports To Parliament On Past Child Sex Abuse Data

In the Australian state of Victoria, the state Parliament's Family and Community Development Committee is conducting an inquiry on the handling of child abuse by religious and other organizations.  The deadline for submissions of written statements and reports to the Committee was Friday. In a press release Friday, the Archbishop of Melbourne announced on that he would file a report titled Facing the Truth on behalf of the leaders of the Catholic Church in Victoria. While the full report has not been publicly released, the press release says that:

In the past 16 years, about 620 cases of criminal child abuse have been upheld by the Church in Victoria. Most claims relate to incidents from 30 and up to 80 years ago.  The Church has received very few complaints of abuse that has taken place since 1990.

The press release also renews the Church's apology to victims and says the report details the changes that have been made in dealing with victims and offenders. The Australian reports on the largely critical reactions of victims and their advocates to the Church's report.

Hostility To Religious Practices Rises In Many Countries, Including U.S.

On Thursday, the Pew Forum on Religion & Public Life released a third in a series of reports on the extent to which governments and societies around the world restrict religious practices.  This latest report, titled Rising Tide of Restrictions on Religion, traces changes in religious restrictions from mid-2009 to mid-2010. As of mid-2010, eighteen countries had very high levels of governmental restrictions on religion, while 15 countries had high levels of non-governmental social hostility.  Between 2009 and 2010, 66% of countries showed an overall increase in difficulties faced by religious groups, while 28% showed a decrease. For the year, the United States showed a significant increase in both governmental restrictions and social hostility. According to the report:

This included incidents in which individuals were prevented from wearing certain religious attire or symbols, including beards, in some judicial settings or in prisons, penitentiaries or other correctional facilities.... Some religious groups in the U.S. also faced difficulties in obtaining zoning permits to build or expand houses of worship, religious schools or other religious institutions.... [A]t least one state sought to restrict the application of Islamic or sharia law. And, for the first time, [it was] ... reported that some level of government in the U.S. had imposed limits on conversion... [A]t the Southport Correctional Facility, an ultra-maximum security prison near Elmira, N.Y.,... a prisoner was denied the right to change his religious designation to Muslim.

.... A key factor behind the increase in the U.S. score on the Social Hostilities Index was a spike in religion-related terrorist attacks in the United States.... Other forms of social hostilities ... also increased....   In Murfreesboro, Tenn. ... some county residents attempted to block the construction of a mosque ... by claiming ... that Islam is a “political ideology rather than a religion” and that “mosques are political rather than religious in nature..... The increase in social hostilities in the U.S. also reflects a rise in the number of reported religion-related workplace discrimination complaints....

[Thanks to First Things blog for the lead.] 

Deadly Protests Over Anti-Muslim Video Continue Despite Attempts to Keep Them Peaceful

According to the Christian Science Monitor, today protests over the controversial video Innocence of Muslims turned deadly in Pakistan as 17 people were killed and dozens were injured. The Pakistani government had declared today "Love for the Prophet Day" and had encouraged peaceful protests. The U.S. Embassy spent $70,000 on Pakistani TV ads showing President Obama and Secretary of State Clinton denouncing the video.  The ads were in English with Urdu subtitles. Meanwhile, ABC News surveys the demonstrations against the film in a dozen countries around the world which have led to the deaths of at least 47 people.

UPDATE: Pakistan's Railways Minister Ghulam Ahmed Bilour on Saturday, speaking for himself and not the government, offered a reward to members of the Taliban and al-Qaeda if they would take part a "noble deed". As reported by al-Jazeera, Bilour said: "I announce today that this blasphemer who has abused the holy prophet, if somebody will kill him, I will give that person a prize of $100,000."  Meanwhile, as reported Saturday by CNN, Egypt's influential Grand Mufti, Ali Gomaa, while strongly criticizing the video, called for Muslims to react peacefully, saying: "These cartoons spread hatred, and we call for peace." He urged Muslims to react as the Prophet himself would, ""through patience and wisdom."

Colombia's Constitutional Court Says No Bible Quotes To Support Legal Decisions

AP reports that Colombia's Constitutional Court this week released a Directive it issued in June that prohibits courts in the country from using quotations from religious texts to directly support the reasoning for a decision or judgment. However, religious quotations can be used to explain a point of view. The ruling came in a labor court case in which the judge's opinion  included a Biblical quotation: "In the case of justice, it shouldn't even favour the poor." The Constitutional Court said that judges "are obliged to respect the principle of secularism that characterizes the Colombian state,"  and that decisions "must be devoid of any expression suggesting a bias based on religious beliefs or personal convictions of the judicial officer."

Preacher Sues Challenging Part of New Orleans Aggressive Solicitation Law

Last year, New Orleans (LA) enacted an extensive "Aggressive Solicitation" ordinance applicable to the French Quarter. (New Orleans City Code Sec. 54-419). Yesterday, the pastor of a church in the French Quarter who regularly preaches and hands out tracts or carries signs on the streets in the area filed a federal lawsuit challenging one provision in the ordinance that prohibits loitering or congregating on Bourbon Street "for the purpose disseminating any social, political, or religious message between the hours of sunset and sunrise." According to the complaint (full text) in Gros v. City of New Orleans, (ED LA, filed 9/20/2012): "Because Pastor Gros firmly believes a large number of people found on Bourbon Street at night desperately need to have saving faith in Jesus Christ, he wants to go there at that time and share the gospel message with them." The complaint contends that the challenged provision is an unconstitutional content-based restriction on speech. It also argues that the ban on "social" messages is void for vagueness. Plaintiffs also filed a motion for a preliminary injunction. (Full text). Alliance Defending Freedom issued a press release announcing the filing of the lawsuit. AP also reports on the lawsuit.

16 Amish Convicted In Beard Cutting Assaults

According to McClatchy Newspapers, a federal court jury in Cleveland, Ohio yesterday convicted 16 members of the Bergholz Amish sect of conspiring to violate the Matthew Shepard-James Byrd, Jr. Hate Crimes Prevention Act in a series of assaults last year on members of a rival Amish group. The Act prohibits any person from willfully causing, or attempting to cause, bodily injury by use of a dangerous weapon, because of the actual or perceived religion of that person. Defendants used scissors and battery powered clippers to cut the beards of male victims and the hair of females.  Defense lawyers, who did not call any witnesses at trial, argued that the attacks were only motivated by love, to save other Amish from their incorrect ways. A Department of Justice Release details that in addition to the conspiracy charges, various of the defendant were convicted of hate crimes involving kidnapping, concealing evidence and making false statements to the FBI. A sentencing hearing is scheduled for January. (See prior related posting.)

Court Issues TRO Allowing High School Cheerleaders To Use Banners With Bible Verses

Earlier this week, after a complaint from the Freedom From Religion Foundation, the Texas Association of School Boards advised the Kountze (TX) Independent School District to ban football cheerleaders from displaying banners, including run-through banners, containing Bible verses. As reported by AP, cheerleaders and their parents objected to the ban, saying the banners were not made on school property and no school money was used to make them. So, as reported by Liberty Institute, cheerleaders and their parents filed suit in state court seeking a temporary restraining order allowing them to use the banners, arguing that: "This is a quintessential example of students private speech being censored unnecessarily by uninformed school officials."  In Matthews v. Kountze Independent School District, (TX Dist. Ct., Sept. 20, 2012), the court issued a TRO restraining the school district from preventing the cheerleaders from displaying banners  or run-throughs at sporting events and/or censoring the sentiments expressed on them. The court scheduled a hearing for Oct. 4 on whether the TRO should be made into a temporary injunction.

Senate Hearings On Hate Crimes Included Focus On Sikh Temple Shooting

Yesterday the U.S. Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights held hearings titled Hate Crimes and the Threat of Domestic Extremism. The hearings focused in part on the Aug. 5 shooting at a Sikh temple in Oak Creek, Wisconsin. A webcast of the hearings and a transcript of witness statements are available on the Committee's website. [Thanks to Michael Lieberman for the lead.]

Actress In "Innocence of Muslims" Sues Producer and YouTube

Cindy Lee Garcia, an actress in Innocence of Muslims-- the video which set off demonstrations around the world-- yesterday filed a lawsuit in a California state court against the film's producer Nakoula Basseley Nakoula.  As reported by Hollywood Reporter and by AP, her suit which asserts claims for invasion of privacy, false light, right of publicity, fraud, slander, and intentional infliction of emotional distress, says that she was tricked into appearing in the film. She thought she was performing in an ancient Egyptian adventure film titled "Desert Warriors." Anti-Muslim dialogue was later dubbed into the film.  Garcia alleges that the producers concealed the purpose and content of the film. Garcia also sued YouTube and its parent company, Google, seeking to have the video taken down from YouTube. In addition to an injunction, the suit seeks exemplary and punitive damages. [Thanks to William McGeveran via CyberProf for the lead.]

UPDATE: Here is the full text of the complaint in Garcia v. Nakoula, (Los Angeles Super Ct., filed 9/19/2012).

UPDATE2: On Thursday, the court refused to issue a temporary injunction to require the video to be removed from YouTube, saying that Garcia had not demonstrated a likelihood of success on the merits. (Hollywood Reporter.)

Massachusetts High Court: Ministerial Exception Doctrine Applies To Age Discrimination Claim By Jewish Religious School Teacher

In Temple Emanuel of Newton v. Massachusetts Commission Against Discrimination,  (MA Sup. Jud. Ct., Sept. 19, 2012), the Massachusetts Supreme Judicial Court held that the constitutionally mandated "ministerial exception" doctrine precludes a state court or administrative agency from applying Massachusetts' anti-discrimination laws to adjudicate an age discrimination complaint filed by a part-time religious school teacher who who was not rehired when a Jewish temple reduced its teaching staff from 20 to 12. The court said:

[plaintiff] was not a rabbi, was not called a rabbi, and did not hold herself out as a rabbi. The record is silent as to the extent of her religious training.... [S]he taught religious subjects at a school that functioned solely as a religious school, whose mission was to teach Jewish children about Jewish learning, language, history, traditions, and prayer..... [T]he fundamental question is whether it would infringe the free exercise of religion or cause excessive entanglement between the State and a religious group if a court were to order a religious group to hire or retain a religious teacher that the religious group did not want to employ, or to order damages for refusing to do so.... We conclude that it would. Where a school's sole mission is to serve as a religious school, the State should not intrude on a religious group's decision as to who should (and should not) teach its religion to the children of its members. Therefore, the ministerial exception applies to the school's employment decision regardless whether a religious teacher is called a minister or holds any title of clergy.

The Boston Globe reports on the decision.

Memphis City Council Adopts New Invocation Policy In Response To FFRF

On Tuesday, the Memphis, Tennessee City Council adopted a lengthy resolution (full text) creating a new policy on opening invocations before city council meetings.  As reported by WREG News, the policy was adopted in order to attempt to avoid a lawsuit threatened by the Freedom From Religion Foundation. Previously invocations were offered, but no written policy was in existence.

After beginning with nearly 3 pages of  "Whereas" clauses, the newly adopted resolution goes on to provide for the Council Administrator to draw up a broad list of religious and benevolent non-profit organizations-- both religious and secular-- with an established local presence. Representatives of these organizations, as well as any fire, police or military chaplain, are eligible to offer "an invocation, which may include a prayer, a reflective moment of silence, or a short solemnizing message... for the benefit of the Council." In somewhat contradictory directions, the policy calls for the Clerk to "make every reasonable effort to ensure that a variety of eligible invocation speakers are scheduled for the Council meetings." However it also provides that an invitation shall be published each year inviting eligible organizations to volunteer to offer the invocation, and that "the respondents to the invitation shall be scheduled on a first-come, first-serve basis to deliver the invocation."

French Magazine Publishes New Muhammad Cartoons; France Reacts, White House Comments

In the wake of widespread Muslim protests over an insulting YouTube video, yesterday,the French satirical magazine Charlie Hebdo invited new protests by publishing a series of cartoons insulting the Prophet Muhammad.  Some of the cartoons depict Muhammad naked and in pornographic poses. AP and the New York Times report on developments. A lawsuit was filed in France against the magazine hours after the issue appeared.  France plans to close its embassies and French schools in 20 countries this Friday as a precaution against demonstrations that could occur after services in mosques.  In Egypt, Muslim Brotherhood spokesman Mahmoud Ghozlan urged authorities to outlaw comments deemed blasphemous by Muslims in the same way that French law outlaws Holocaust denial. Meanwhile, hackers have blocked access to Charlie Hebdo's website because of the depictions on it.  French police are guarding Charlie Hebdo's offices. Last November, its offices nearby were firebombed after it published as a spoof an issue “guest edited” by Muhammad to celebrate the victory of an Islamist party in Tunisian elections.  Charlie Hebdo's defiant editorial director Stéphane Charbonnier said: "I’m sorry for the people who are shocked when they read Charlie Hedbo. But let them save 2.50 euros and not read it. That’s the only thing I have to say."

In Washington, at the White House Press Briefing (full text) yesterday afternoon, press secretary Jay Carney had this exchange with reporters over the Charlie Hebdo cartoons:

Q    The French government has decided to temporarily close their embassies and schools in several Muslim countries after a satirical weekly, Charlie Hebdo, that published cartoons mocking the Prophet Muhammad.  Is the White House concerned that those cartoons might further fan the flames in the region?

MR. CARNEY:  Well, we are aware that a French magazine published cartoons featuring a figure resembling the Prophet Muhammad, and obviously, we have questions about the judgment of publishing something like this.  We know that these images will be deeply offensive to many and have the potential to be inflammatory.  But we’ve spoken repeatedly about the importance of upholding the freedom of expression that is enshrined in our Constitution.

In other words, we don’t question the right of something like this to be published; we just question the judgment behind the decision to publish it.  And I think that that’s our view about the video that was produced in this country and has caused so much offense in the Muslim world.

 Now, it has to be said, and I’ll say it again, that no matter how offensive something like this is, it is not in any way justification for violence -- not in any way justification for violence.  Now, we have been staying in close touch with the French government as well as other governments around the world, and we appreciate the statements of support by French government officials over the past week, denouncing the violence against Americans and our diplomatic missions overseas.

Rights Group Protests Egypt's Arrest of Activist For Insulting Religion

The Arabic Network for Human Rights Information issued a press release last Sunday protesting the arrest by Egyptian police of political activist and blogger known as Albir Saber Aiad. Last week, Aiad's mother called the police for help when a crowd gathered around Aiad's house, threatening to break in and burn it down, because of a rumor that Aiad had posted a movie on his Facebook page that ridiculed the Prophet Muhammad.  When police arrived, they inspected the house, confiscated Aiad's computer and some CDs. took Aiad to the police station and charged him with insulting religion, without indicating who had filed a report against him. He was jailed, and was assaulted due to provocations by police officers. On Sunday, authorities extended Aiad's imprisonment for 15 more days while an investigation is taking place.

Canadian and Indian Governments Express Concern With Pro-Khalisan Activity By Canadian Sikhs

Last week, Canada's foreign minister John Baird in a visit to India promised to do "whatever we can within the limits of the Constitution" to prevent  extremist activity in Canada by Sikhs who want to create a separate Sikh state of Khalistan in the Punjab area of India. As reported by the Toronto Star, Baird made the comments at a press conference along with India's external affairs minister S. M. Krishna. The government of India has been  pressing Canada to take action against the separatists. Reflecting the views of the Indian government, the Indian Overseas Congress has said it wants all Khalistan insignia to be removed from Sikh Gurdwara’s in the United States and Canada. (SikhSiyasat Network, 9/14). In a press release, the Indian Overseas Congress claims that Canada's tax laws justify the call for removal of Khalistan insignia, since tax-exempt organizations generally cannot devote more than 10% of their resources political activities. (SikhSivasat Network, 9/18). Meanwhile, Canada's Sikh Coalition criticized attempts to limit pro-Khalistan activity, saying that it is an attempt "to silence any political discourse on the current state of Punjab by associating political discussion with extremism."

Egypt Charges 8 In U.S. In Connection With "Innocence of Muslims" Video

CNN reports that Egypt's public prosecutor yesterday charged 7 Coptic Christians living in the United States, and Florida pastor Terry Jones, with insulting the Islamic religion and the prophet Muhammad, inciting sectarian strife, harming national unity and spreading false information, all in connection with the 14-minute trailer for the movie Innocence of Muslims.  The video, posted on YouTube, led to demonstrations around the Arab and Muslim world, including attacks on the U.S. Embassy in Cairo and the U.S. Consulate in Libya. (See prior posting.)  In addition to Jones, those charged are filmmaker Nakoula Basseley Nakoula (identified by Egyptian officials as Elia Bassili); Morris Sadek, who is believed to have posted the video on YouTube; Morcos Aziz; Fikri Zokloma (also known as Esmat Zokloma); Nabil Bissada; Nahed Metwali; and Nader Nicola. Egypt added the names of those charged to its airport watch list, and says it will ask Interpol to add the names to its wanted lists.

Contempt Charges Reinstated, But Penalty Purged, For Muslim Defendant Who Refused To Stand

As previously reported, in June the U.S. 8th Circuit Court of Appeals vacated 19 criminal contempt citations issued by a Minnesota federal district court against a Somali Muslim defendant who, for religious reasons, refused to stand when the court convened and recessed. The appeals court ordered the trial court to consider whether under the Religious Freedom Restoration Act, this was the least restrictive means to keep order in the courtroom. Now, according to AP, the federal district court has reinstated all the contempt charges against Amina Farah Ali, but purged her 100-day sentence. Judge Michael Davis said that he took extra precautions to ensure order because of the publicity surrounding the trial. He reached out to elders in the Somali community to help keep order in the spectator-packed courtroom.  Rules were posted in Somali as well as English, and a room was set aside for Muslims who wanted to pray. On the third day of her trial, Ali began to stand when the court opened and closed, after Muslim clerics visited her in jail and told her she was allowed to stand if she is in a difficult position. In the case Ali is charged with soliciting charitable donations which were then routed to the terrorist group, al-Shabab.

UPDATE: The full text of the court's opinion is available at United States v. Ali, 2012 U.S. Dist. LEXIS 133766 (D MN, Sept. 19, 2012).

Indian Court Bars Sale Of Chicken And Fish During Jain Festival

In India, Jains are celebrating a 9-day festival of Paryushana, ending today.  As reported by Express India and Times of India, in 2008 India's Supreme Court ordered all slaughter houses and meat shops closed during the festival in deference to the Jain community.  Yesterday, six traders asked the Gujarat High Court to allow them to sell chicken and fish (as well as meat already in stock), arguing that fish and chicken did not come within the Supreme Court's prohibition.  A single judge granted their request. However after a three hour hearing on the same day, a division bench made up of two judges reversed the interim relief granted by the single judge, holding that sale of chicken and fish would violate the spirit of the Supreme Court order and would hurt Jains' religious sentiments.

Missouri College Sues Over ACA Contraception Coverage Mandate

Another lawsuit has been filed challenging the Affordable Care Act mandate requiring most health insurance policies to cover contraceptive services. Timed to be filed on Constitution Day, the suit was brought by Missouri's College of the Ozarks, a college that defines one of its goals as fostering the Christian faith. The complaint (full text) in School of the Ozarks, Inc. v. U.S. Department of Health and Human Services, (WD MO, filed 9/17/2012), says that the College's sincerely held religious beliefs preclude it from providing coverage for elective abortion services, and it considers the FDA approved contraceptives Plan B and Ella to be abortifacients. The suit claims that the mandate violates the College's 1st and 5th Amendment rights, the Religious Freedom Restoration Act, and the Administrative Procedure Act. The Springfield (MO) News-Leader reports on the press conference held by College president Jerry Davis announcing the filing of the lawsuit. Ozarks First reprints the full text of the College's press release on the lawsuit.

Massachusetts Diocese Sued For Refusal To Sell Land To Gay Developers

The Boston Globe and WBUR News reported last week on a sexual orientation discrimination lawsuit filed in Worcester, Massachusetts Superior Court against the Catholic Diocese of Worcester.  James Fairbanks and Alain Beret, a same-sex married couple who are real estate developers, were negotiating to purchase an old mansion owned by the diocese, planning to turn it into a hotel.  Plaintiffs allege that the diocese cut off negotiations when they realized that the planned hotel might host same-sex marriages. Monsignor Thomas Sullivan says that negotiations broke down because the developers could not secure financing for their first offer, and their second offer was far too low.  The developers, however, cite e-mails that were inadvertently forwarded to them in which Sullivan said that he was cutting off negotiations because of the possibility of gay marriages there. Sullivan admits that the Church will not sell properties where masses have been performed for uses the Church deems inappropriate. Massachusetts law bars discrimination on the basis of sexual orientation, among others, in the sale of real estate.

The mansion at issue, now know as Oakhurst, was used by the Church beginning in the 1970's as a rehabilitation center for pedophile priests, called the House of Affirmation. However, as reported in 2005 by La Sallette Journey blog, it was closed in a financial scandal in the late 1980's amid claims that the priest who had founded it was actually using it for financial gain and to create a child sex ring.

Jury Awards $280,000 In Religious Employment Discrimination Suit

The Albuquerque (NM) Journal today reported on federal court jury verdict handed down last month in a New Mexico federal district court against the Albuquerque Bernalillo County Water Utility Authority awarding $180,000 in actual damages and $100,000 in punitive damages to an employee who claimed he was denied promotion because of his religious beliefs. James Chávez, a senior engineer, said he was passed over for promotion 17 times since 2006 because he resisted the religious proselytizing of his supervisor, John Stomp.  The suit charged that Stomp, a devoutly religious Christian, tried to get Chavez to attend his church and on one occasion gave him a Bible. The jury, however, rejected Chavez's other claim alleging racial discrimination claim.

President Obama's Rosh Hashanah Greetings Issued Last Week

The Jewish High Holidays began Sunday night with Rosh Hashanah, and continue through Yom Kippur next Wednesday.  Last week (Sept. 13), President Obama issued Rosh Hashanah greetings from himself and the First Lady. (Full text).He said in part:

At a time when our public discourse can too often seem harsh; when society too often focuses on what divides us instead of what unites us; I hope that Americans of all faiths can take this opportunity to reach out to those who are less fortunate; to be tolerant of our neighbors; and to recognize ourselves in one another. 

Recent Articles of Interest

From SSRN:

• Stefano Vinci, The Diffussion of the Roman-Canonical Procedure in Europe: The Liber Belial between Canon Law and Roman Law Sources, (Max Planck Institute for European Legal History No. 2012-03, 2012).
• Julio C. Colon, In Defense of Islamic Finance: Three Landmark U.S. Cases, (September 10, 2012).
• Thomas C. Berg, Can State-Sponsored Religious Symbols Promote Religious Liberty?, (Journal of Catholic Legal Studies, 2013).
• Sahar F. Aziz, Protecting Rights as a Counterterrorism Tool: The Case of American Muslims, (September 10, 2012).
• Amanda Mauriello Baker, A Higher Authority: Judicial Review of Religious Arbitration, (37 Vermont L. Rev., December 2012, Forthcoming).
• Anver M. Emon, On Sovereignties in Islamic Legal History, (Middle East Law and Governance 4, Numbers 2-3, 2012).
• Iftikhar Hussian Bhat, Status and Rights of Women Under Islamic Law, (August 15, 2012).

From SmartCILP:

• Justin Butterfield, Hiram Sasser and Reed Smith, The Parsonage Exemption Deserves Broad Protection, 16 Texas Review of Law & Politics 251-273 (2012).
• Nicholas P. Cafardi, Saving the Preachers: The Tax Code's Prohibition on Church Electioneering, [Abstract], 50 Duquesne Law Review 503-544 (2012).
• Douglas Laycock, Hosanna-Tabor and the Ministerial Exception, 35 Harvard Journal of Law & Public Policy 839-862 (2012).
• William P. Marshall and Gene R. Nichol, Not a Winn-Win: Misconstruing Standing and the Establishment Clause, 2011 Supreme Court Review 215-252.
• Michael W. McConnell, Reflections on Hosanna-Tabor, 35 Harvard Journal of Law & Public Policy 821-837 (2012).
• Kevin M. Lemley, A Proposal to Expand the Religious Services Exemption Under the Copyright Act, 34 University of Arkansas Little Rock Law Review 481-506 (2012).
• Jeremy G. Mallory, "Well, but that System Has Failed Entirely": Using Theological and Philosophical Methods to Resolve Jurisprudential Confusion Over Legislative Prayer, 33 Whittier Law Review 377-409 (2012).
• Lisa Shaw Roy, The Evangelical Footprint, 2011 Michigan State Law Review 1235-1291.
• Amelia J. Uelmen, Bob Drinan In History. (Reviewing Raymond A. Schroth, S.J., Bob Drinan: The Controversial Life of the First Catholic Priest Elected to Congress.), [Abstract], 25 Georgetown Journal of Legal Ethics 341-363 (2012).
• Conference: The Foundation of Human Rights: Catholic Contributions, Part I. Preface by Matthew H. Brown; articles by Robert L. Fastiggi, Riccardo Pozzo, Gerry Rauch, Robert John Araujo, Victor M. Salas, Jr., Steven J. Brust, Patricia Pintado, Michael Pakaluk, Cecilia Castillo and Thomas P. Scheck. 10 Ave Maria Law Review 261-415 (2012).

[Updated]

Recent Prisoner Free Exercise Cases

In Strother v. Myers, 2012 U.S. Dist. LEXIS 126896 (ED CA, Sept. 6, 2012), a California federal magistrate judge dismissed, with leave to amend, a Muslim inmate's complaint seeking an injunction and $1 million in damages in a challenge to prison policies governing religious headgear, religious oils, and use of the chapel.

In Harrison v. Tarnoff, 2012 U.S. Dist. LEXIS 127664 (ED CA, Sept. 6, 2012), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that he was not allowed to have a religious name change to obtain a Muslim name.

In Furnace v. Giurbino, 2012 U.S. Dist. LEXIS 128659 (ED CA, Sept. 5, 2012), a California federal magistrate judge recommended allowing an inmate who practices Shetaut Neter to proceed with his claim that he is being denied his required religious vegetarian diet. The court held that the claim is not barred by res judicata since a prior suit by plaintiff involved a different prison.

In Taylor v. Williamson, 2012 U.S. Dist. LEXIS 129041 (CD IL, Sept. 11, 2012), an Illinois federal district court denied motions for summary judgment and scheduled a jury trial in a case in which an inmate of the Hebrew Israelite religion complained that his requests for a vegetarian or kosher diet have been denied.

In Totten v. Caldwell, 2012 U.S. Dist. LEXIS 129104 (ED MI, Sept. 11, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 129124, July 31, 2012) and permitted a Muslim inmate to proceed against the prison chaplain for failing to schedule the Eid-al-Adha prayer service. However the court dismissed a lengthy list of other claims against several defendants claiming a variety of interferences with plaintiff's ability to practice his Muslim religion.

In Neasman v. Swarthout, 2012 U.S. Dist. LEXIS 130292 (ED CA, Sept. 12, 2012), a California federal magistrate judge, in recommending denial of habeas corpus, rejected an inmate's claim that the parole board required him to participate in a faith based substance abuse program.

In Robinson v. Parker, 2012 U.S. Dist. LEXIS 129040 (WD KY, Sept. 11, 2012), a Kentucky federal district court, while dismissing several claims, permitted a member of the Moorish Science Temple of American Islamism Faith to proceed with his claim under RLUIPA for injunctive relief based on the prison's refusal to permit him, for religious reasons, to use "El" as part of his name in making records requests and the like.

Smoking Ordinance Does Not Violate Free Exercise Rights

In Porter v. Bates, 2012 U.S. Dist. LEXIS 129394 (ND CA, Sept. 11, 2012), a California federal district judge dismissed claims that a Berkeley city ordinance banning smoking within 25 feet of any building open to the public (and 50 feet of health care facilities) violates plaintiff's right to the free exercise of religion. Plaintiff alleged that  a citation issued to him for violating the ordinance "banned specific expressions of Indigenous Faith, Culture and Ancient Social Custom from designated Capitalist Preserves . . . ."  The court held that the ordinance is a neutral law of general applicability and, further, plaintiff failed to allege what is his "indigenous faith" and how smoking furthers that faith.

Fraternity House Is Not A Monastery For Zoning Purposes

In Myers v. City of Chicago, (ND IL, Sept. 12, 2012), and Illinois federal district court rejected an equal protection claim by plaintiff who purchased a house on Chicago's North Shore Avenue intending to rent it for use as a fraternity house to Sigma Pi Fraternity.  However, fraternities and sororities in this area require a special use permit-- except for those located in the area before 1970 zoning changes established this requirement.  Plaintiff argued that the city should treat his proposed use of the house as a "monastery"-- a permitted use in the area-- because of the Sigma Pi's mission statement: "In the Service of God and Man."  The court concluded:

No matter how closely Sigma Pi hews to the letter of its motto, Myers has fallen far short of proving that the Sigma Pi fraternity brothers are actual Religious Brothers, that is, in the words of the ordinance, "persons (such as nuns or monks) under religious vows." The defendants’ interpretation of this language to exclude fraternity houses therefore passes the rational-basis test.

Courthouse News Service reports on the decision.

EEOC Posts Web Page On Employment Discrimination Against Muslims and Sikhs

The federal Equal Employment Opportunity Commission has added a page to its website titled "What You Should Know about the EEOC and Religious and National Origin Discrimination Involving the Muslim, Sikh, Arab, Middle Eastern and South Asian Communities." It says that the EEOC "

has filed nearly 90 lawsuits alleging religious and national origin discrimination involving the Muslim, Sikh, Arab, Middle Eastern and South Asian communities, many of which involved harassment.  The alleged harassment included taunts such as "Saddam Hussein," "camel eater," and "terrorist."

The web page links to summaries of many of the suits, as well as to fact sheets on religious and ethnic discrimination.

Suit Challenges 10 Commandments Monument Outside High School

The Freedom From Religion Foundation announced yesterday that it (along with two students and their parents) has filed a federal lawsuit challenging the constitutionality of a 6-foot tall Ten Commandments monument that has been displayed for decades in front of New Kensington, Pennsylvania's Valley High School.  The monument is one of the many around the country that were donated by the Fraternal Order of Eagles.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. New Kensington-Arnold School District, (WD PA, filed 9/14/2012) claims that the display lacks any secular purpose. The Board of Education president, on his Facebook page, has called FFRF's claim "a frivolous lawsuit and request by a radical group."

Virginia Settlement Will Allow Religiously Mandated 1/4-Inch Beards In Prisons

AP reports that the Virginia Department of Corrections this week entered a settlement agreement with Sunni Muslim inmate William Couch who sued seeking to wear a beard for religious reasons. (The case has been up to the 4th Circuit and is now on remand.)  Under the settlement, the prison system will change its rules so that all inmates who wish to grow a beard for religious reasons will be permitted to have facial hair up to 1/4 inch in length. However, the inmate will need to have a second identification photo taken-- one showing him with a beard and one without. The inmate will be charged $2 for taking the photo, an amount that plaintiff's attorney says is too high for inmates who earn only 35 cents per hour for prison work. The new policy requires facial hair, if worn, to cover the entire facial hair area and contain no shapes or designs-- so goatees are prohibited. The prison barber shop will use a 1/4 trimmer on beards to assure compliance with length requirements.

Suit Challenging Gifts To Legion of Christ Dismissed on Standing Grounds, But Judge Says Questions Remain

In Dauray v. Estate of Gabrielle D. Mee, (RI Super. Ct., Sept. 7, 2012), a Rhode Island Superior Court held that Mary Dauray, the niece of devout Catholic Gabrielle D. Mee, lacks standing in the three cases she filed to challenge Mee's extensive gifts to the scandal-ridden conservative Catholic order, Legion of Christ.  In the suits, Dauray claimed that Mee's will was executed under undue influence, fraud and mistake in the inducement; that Mee was fraudulently induced into giving $60 million in gifts during her lifetime to Legion of Christ; and that the Bank involved breached its duties as trustee of multiple trusts. The court went on to hold however that if plaintiff had standing, it would not have dismissed the undue influence, fraud and breach of fiduciary duty claims because genuine issues of material fact remain.  National Catholic Reporter reports on the decision.

NYC Approves Informed Consent Requirement For Controversial Circumcision Procedure; Court Challenge Planned

The New York Times reports that yesterday the 9-member New York City Board of Health voted unanimously to approve a proposed rule that requires informed consent from a parent or guardian in a Jewish ritual circumcision where a mohel will use the controversial procedure known as metzitzah b’peh.  The procedure, whose use is limited to certain Orthodox Jewish ritual circumcisions, involves use of the mohel's mouth-- rather than the more commonly used sterile pipette-- to suction blood from the circumcision site. Parents or guardians will be required to sign a consent that warns of the risks involved in the procedure, including possible passing on of herpes simplex infection. (See prior related posting.) Some Board members thought they should go further and ban the oral suction procedure completely.  According to Jewish Voice, Agudath Israel of America is planning to sue to challenge the newly approved regulation on free exercise and compelled speech grounds. It is seeking a law firm that will bring the suit on a pro bono or reduced fee basis.

NY Scaffold Law Applies To Worker Dismantling Wedding Chuppah

New York's "Scaffold Law," Labor Law, Sec. 240, imposes liability on contractors and owners who fail to provide proper scaffolding, ladders and related equipment to protect workers involved in the erection or demolition of any "building or structure." In McCoy v Kirsch, NY App. Div., Sept. 12, 2012), a New York appellate court held that an elaborate Jewish wedding chuppah (wedding canopy) qualifies as a "structure" so that a catering facility could be liable under Sec, 240 to a florist employee who was injured when an allegedly defective ladder on which he was standing to disassemble the chuppah slipped. The court said:

the chupah consisted of various interconnected pipes 10 feet long and 3 inches wide, secured to steel metal bases supporting an attached fabric canopy. A ladder plus various hand tools were required to assemble and disassemble the chupah's constituent parts in a process that would take an experienced worker more than a few minutes to complete.  The chupah here is more akin to the things and devices which the courts of this state have recognized as structures than to the things and devices that have not been recognized as structures.

This is not to say that every chupah qualifies as a structure under Labor Law § 240(1). Undoubtedly, there are wide variations of chupahs, some involving a series of durable interconnected parts, and others being much more simple and merely decorative in nature. 

JTA reports on the decision.

Egyptian Film Star Wins Reversal of Conviction for Insulting Islam

In Egypt on Wednesday, popular Arab comedian and film star Adel Imam won a reversal of his conviction for insulting Islam.  A trial court had sentenced Imam to 3 months in jail and a fine equivalent to $170 for the roles he played in The Terrorist, and in Terrorism and Kabab. He had also been convicted for his 2007 role in Morgan Ahmed Morgan which included a scene parodying bearded Muslim men wearing traditional Islamic dress. The basis for the reversal of his trial court conviction by the Misdemeanours Court in Haram, Cairo, has been variously reported.  The New York Times says the court found that the conservative Islamist lawyer who had instituted the proceedings was found to lack standing because he had not been personally injured by the movies.  Ahram Online says the appeals court judge had watched the films and concluded that they did not defame Islam.

Mystery Surrounds True Identity of Person Who Produced Anti-Muslim Film That Triggered Demonstrations

Mystery surrounds the anti-Muslim video that was at the center of demonstrations Tuesday at the U.S. embassy in Egypt and the U.S. consulate in Libya (as well as elsewhere since).  As previously reported, a person who said his name was "Sam Bacile" and who identified himself as a California real estate developer and an Israeli Jew claimed to be the producer of the film Innocence of Muslims. Now, however, both CNN and AP report that this is likely a fictional identity. Israel's Foreign Ministry says it has no record of anyone by that name as an Israeli citizen, and searches of public records in the United States turn up nothing for him. Anti-Muslim activist Steve Klein says he was a script consultant for the film. Klein heads an anti-Mulsim group known as Concerned Citizens for the First Amendment.  The Southern Poverty Law Center says Klein is a former Marine and religious-right activist who has helped train paramilitary militias at a California church.  He founded Courageous Christians United which conducts protests outside abortion clinics, Mormon temples and mosques.

Meanwhile, in California, a Coptic Christian, Nakoula Basseley Nakoula, says he was the manager for the company that produced the film. In 2010, Nakoula pleaded guilty to federal bank fraud charges. AP points to evidence that suggests Nakoula could be the person posing as Bacile. And the Washington Post reports on more inconsistencies: the cast and crew of the film claim they were misled about the intent and purpose of the film and were not told about later drastic re-writes of the script. Apparently the permit for producing the film was taken out by California-based Media for Christ. No one appears able to obtain a copy of the full film, leading some to speculate that the full production (as opposed to the 13-minute trailer available online) does not exist.

Missouri Legislature Overrides Veto On Health Care Conscience Provisions; Lawsuit Filed

In a move to oppose the federal mandate on contraception coverage in health insurance policies, the Missouri legislature yesterday voted to override Gov. Jay Nixon's veto of SB 749. The bill permits employers, employees and insurance companies to opt out of providing health insurance coverage for abortion, contraception or sterilization where the procedures are contrary to the person's religious beliefs or moral convictions. Nixon had vetoed the bill (veto message) because it permits insurance companies to deny contraceptive coverage even where employers and their women employees want such coverage.  The vote to override the governor's veto was 26-6 in the state Senate and 109-45 in the House. (Roll call.) The St. Louis Post Dispatch reports that just hours after the override vote, a federal lawsuit challenging the law was filed by the Greater Kansas City Coalition of Labor Union Women and a female firefighter. The suit claims that the law discriminates on the basis of gender and religion, and is contrary to federal law.

UPDATE: According to Missouri Watchdog, the lawsuit challenging the new law was filed in state court in Cole County (MO).

Church Sues Over Permit Denial To Leaflet Outside LDS Temple Open House

The ACLU of Utah announced Tuesday that it had filed a federal lawsuit on behalf of the Main Street Church of Brigham City challenging the constitutionality of Brigham City, Utah's so-called Free Speech Zone Ordinance that requires a permit for the Church to hand out literature on the sidewalks of the city.  The complaint (full text) in Main Street Church of Brigham City v. Brigham City, Utah, (D UT, filed 9/11/2012), alleges that the Church wants to hand out literature on differences between its beliefs and those of the Church of Jesus Christ of Latter Day Saints.  It wants to leaflet and engage in discussions with those receiving their literature during the month-long Open House for the LDS Temple in Brigham City.  It applied for a permit to carry out its activities on the public sidewalks adjacent to the streets on all four sides of the LDS Temple, but the city denied permission to leaflet on the two sidewalks with the heaviest pedestrian traffic. The suit alleges that the ordinance unconstitutionally restricts plaintiff's freedom of expression and assembly as well as its free exercise of religion.

Hobby Lobby Challenges ACA Contraceptive Coverage Mandate On Religious Grounds

Yesterday the Becket Fund announced yet another lawsuit challenging on free exercise grounds the contraception coverage mandate under the Affordable Care Act.  This time the plaintiffs are Hobby Lobby, a privately held chain of hobby supply stores that operates over 500 stores in 41 states with a total of over 13,000 employees, and Mardel, Inc., a chain of 35 bookstores in 7 states that sells Christian themed materials.  Both companies are owned by the Green family who are Evangelical Christians. The complaint (full text) in Hobby Lobby Stores, Inc. v. Sebelius, (WD OK, filed 9/12/2012), sets forth the Green family's religious beliefs opposing furnishing of coverage for "abortion-causing" contraceptive drugs and IUDs, such as Plan B and Ella. They do not object to providing coverage for other contraceptives.  The complaint sets out at length the manner in which the owners' Christian values are reflected in their operation and management of Hobby Lobby. The suit alleges violation of the 1st and 5th Amendments, the Religious Freedom Restoration Act and the Administrative Procedure Act.

Egypt Plans Legal Action Against Makers of Anti-Muslim Film

Reuters reports that Egyptian President Mohamed Mursi has asked the Egyptian embassy in Washington, D.C. to take legal action in the U.S. against the makers of the film Innocence of Muslims. The film was cited as the reason for attacks on the U.S. Embassy in Egypt yesterday.

U.S. Embassy's Initial Statement Criticizing Anti-Muslim Video Leads To Political Controversy

As reported by CBS News, the statement initially issued by the U.S. Embassy in Cairo, Egypt yesterday as demonstrators outside it began to protest an anti-Muslim film made in the United States has created a political controversy.  The Embassy statement read as follows in full:

The Embassy of the United States in Cairo condemns the continuing efforts by misguided individuals to hurt the religious feelings of Muslims – as we condemn efforts to offend believers of all religions. Today, the 11th anniversary of the September 11, 2001 terrorist attacks on the United States, Americans are honoring our patriots and those who serve our nation as the fitting response to the enemies of democracy. Respect for religious beliefs is a cornerstone of American democracy. We firmly reject the actions by those who abuse the universal right of free speech to hurt the religious beliefs of others.

Then, after word also came of attacks on the U.S. Consulate in Libya, but before it was known that U.S. Ambassador J. Christopher Stevens had been killed, Republican nominee Mitt Romney issued the following statement:

I'm outraged by the attacks on American diplomatic missions in Libya and Egypt and by the death of an American consulate worker in Benghazi.

It's disgraceful that the Obama Administration's first response was not to condemn attacks on our diplomatic missions, but to sympathize with those who waged the attacks.

Then, as reported by ABC News, the Obama administration moved to distance itself from the statement issued by the Cairo embassy. An administration official said: "no one in Washington approved that statement before it was released and it doesn’t reflect the views of the U.S. government."

This morning, Mitt Romney renewed his criticism in a statement (full text) delivered in Jacksonville, Florida. He said in part:

We have confidence in our cause in America. We respect our Constitution. We stand for the principles our Constitution protects. We encourage other nations to understand and respect the principles of our Constitution, because we recognize that these principles are the ultimate source of freedom for individuals around the world.

I also believe the administration was wrong to stand by a statement sympathizing with those who had breached our embassy in Egypt, instead of condemning their actions. It’s never too early for the United States government to condemn attacks on Americans and to defend our values.

The White House distanced itself last night from the statement, saying it wasn’t cleared by Washington. That reflects the mixed signals they’re sending to the world.

Then in response to a reporter's question, Romney added:

The president takes responsibility not just for the words that come from his mouth, but also for the words that come from his ambassadors , from his administration, form his embassies, from his state department. They clearly sent mixed messages to the world. The statement that came from the administration — and the embassy is the administration — the statement that came from the administration was a statement which is akin to apology. And I think was a severe miscalculation. They clearly ...sent mixed messages to the world.

 Meanwhile, at the White House today, President Obama released a statement which reads in part:

I strongly condemn the outrageous attack on our diplomatic facility in Benghazi.... While the United States rejects efforts to denigrate the religious beliefs of others, we must all unequivocally oppose the kind of senseless violence that took the lives of these public servants.

California Developer Behind Film That Triggered Attacks In Egypt and Libya

Fox News reports today that Sam Bacile, who wrote and directed the controversial film Innocence of Muslims (YouTube trailer for film) went into hiding Tuesday after the film was blamed in the attacks on the U.S. embassy in Egypt and the U.S. consulate in Libya. (See prior posting.) Bacile said he intended the film to be provocative, describing Islams as "a cancer." Bacile is a California real estate developer who identifies himself as an Israeli Jew. He says he financed the $5 million film with donations from more than 100 Jewish donors.

Israeli Court Rejects Reception Hall Owners' Religious Objections To Same-Sex Marriage

According to Haaretz today, the Jerusalem Magistrate's Court has for the first time under Israeli law held that owners of a reception hall may not refuse on religious grounds to host a same-sex wedding reception. The court awarded damages of 60,000 NIS ($15,196 US) and imposed 20,000 NIS in legal fees and court costs on the owners of the reception hall who are members of a sect of Messianic Jews. A lesbian couple, Tal Ya'akovovich and Yael Biran, booked the hall for a reception, but the owners canceled the reservation when they realized the reception was for a same-sex couple. The owners say that based on verses from the Old and New Testaments, they believe that homosexuality is an "abomination." The court refused to accept the owners' claim that their business has a religious character.  The court said:

Every person who opens a public business in Israel should know that they must serve the whole public equally, without discrimination, according to laws, which cover sexual orientation as well. As soon as the defendants opened their doors to all, they cannot close them for those who they believe do not meet the requirements found in the Bible or New Testament, thereby damaging their dignity and sensitivities.

The court also said:

Rejection, verbal abuse, and humiliation of another based on their sex or sexual orientation constitutes sexual harassment. Sexual harassment does not only include sexual exploitation, but also, and perhaps principally, ridiculing another person for their sex or sexual orientation… and in this case, the plaintiffs were ridiculed because of their sexual orientation

Virginia Grants Over 7,000 Religious Exemptions From Compulsory Education

Code of Virginia § 22.1-254 generally requiring school attendance by children goes on to provide:

A school board shall excuse from attendance at school: 

1. Any pupil who, together with his parents, by reason of bona fide religious training or belief is conscientiously opposed to attendance at school. For purposes of this subdivision, "bona fide religious training or belief" does not include essentially political, sociological or philosophical views or a merely personal moral code....

Virginia is only one of 4 states that has a specific religious exemption, and is the only state that has no explicit alternative educational requirement for those granted an exemption.  Yesterday's Charlottesville (VA) Daily Progress reports that a study by the Child Advocacy Clinic at the University of Virginia law school found that 7,296 children were granted exemptions under this provision in the 2010-11 school year. This is up from 5,479 in the previous year. While the student's views, as well as those of his or her parents are supposed to be considered by the local school board in granting exemptions, the study found that the schools had contact with the students involved in only 10% of the cases, and in less than 1% had direct contact with the student. Almost 95% of the school boards said they had never denied a request for exemption.

Anti-Muslim Video Cited In Attacks On U.S. Embassies In Egypt and Libya

The U.S. embassy in Egypt and the U.S. consulate in Libya were attacked yesterday, by demonstrators citing the movie "Innocence of Muslims" as the reason. Reuters reports that U.S. ambassador to Libya, Christopher Stevens and 3 staff members were killed in a rocket attack on their car as they were being driven from the consulate building to a safer location..  The New York Times reports these details on the video:

The mobs were set off by Egyptian media reports about a 14-minute trailer for the video, called “Innocence of Muslims,” that was released on the Web. The trailer opens with scenes of Egyptian security forces standing idle as Muslims pillage and burn the homes of Egyptian Christians. Then it cuts to cartoonish scenes depicting the Prophet Muhammad as a child of uncertain parentage, a buffoon, a womanizer, a homosexual, a child molester and a greedy, bloodthirsty thug.

The trailer was uploaded to YouTube by Sam Bacile, whom The Wall Street Journal Web site identified as a 52-year old Israeli-American real estate developer in California. He told the Web site he had raised $5 million from 100 Jewish donors to make the film. “Islam is a cancer,” Mr. Bacile was quoted as saying.

The video gained international attention when a Florida pastor began promoting it along with his own proclamation of Sept. 11 as “International Judge Muhammad Day.”

In a statement on Tuesday, the pastor, Terry Jones of Gainesville, Fla., called the film “an American production, not designed to attack Muslims but to show the destructive ideology of Islam” and said it “further reveals in a satirical fashion the life of Muhammad.”

In a statement (full text) issued yesterday, Secretary of State Hillary Rodham Clinton said in part:

I condemn in the strongest terms the attack on our mission in Benghazi today.... Some have sought to justify this vicious behavior as a response to inflammatory material posted on the Internet. The United States deplores any intentional effort to denigrate the religious beliefs of others. Our commitment to religious tolerance goes back to the very beginning of our nation. But let me be clear: There is never any justification for violent acts of this kind.

6th Circuit: Policeman's Prayer With Defendant Not Cause of Incriminating Statements

In United States v. Wynn, (6th Cir., Sept. 7, 2012), the U.S. 6th Circuit Court of Appeals refused to suppress incriminating statements made by defendant, Kenneth Wynn, who was convicted of firearms possession violations.  Wynn argued that his statements were made after a police officer invited him to pray, that this constituted a custodial interrogation, and he had not received Miranda warnings.  The district court however had found that the incriminating statements were made as an emotional response to Wynn's girlfriend's refusal to speak with him when he was sitting in a police car, not in response to any prayer or statement by the police.

2nd Circuit Affirms Dismissal of Dissident Hasidic Group's Discrimination Claims Against Kiryas Joel

In Kiryas Joel Alliance v. Village of Kiryas Joel, (2d Cir., Sept. 10, 2012), the U.S. 2nd Circuit Court of Appeals affirmed a New York federal district court's dismissal of a lawsuit filed by a dissident faction of the Satmar Hasidic sect living in Village of Kiryas Joel, New York. Plaintiffs reject the authority of the sect's current Grand Rebbe, Aron Teitelbaum, who leads the dominant religious organization in the Village, Congregation Yetev. Plaintiffs claim that because of their refusal to accept the Grand Rebbe, they have been discriminated against in various ways by the Village, which is run by Congregation Yetev members. The court dismissed plaintiffs' claims of discriminatory application of zoning law to them on res judicata grounds. It held that plaintiffs lack standing to assert certain claims of injury to non-parties to the litigation. It rejected plaintiffs' equal protection religious discrimination claims, finding that plaintiffs had not shown that defendants were motivated by religious, as opposed to political, differences. Finally the court also rejected plaintiffs' Establishment Clause and conspiracy claims.

State Court Refuses To Enforce Mahr Agreement In Divorce Action

In Soleimani v. Soleimani, (KA Dist. Ct., Aug. 28, 2012), a divorce action, a Kansas state trial court refused to enforce a mahr agreement-- an Islamic premarital contract-- under which the wife claimed she was entitled her to $677,000 from her husband.  The court said in part:

The parties agreed in the Pretrial Order to the application of Kansas law.  By urging the Court to adopt and interpret a mahr contract that is written in Farsi and dictated by interpretations of Iranian and/or religious law, the Court would be compelled to apply a contract 1) it cannot read and 2) that is contrary to the public policy of Kansas law....

Another cautionary concern in enforcing a mahr agreement is that they stem from jurisdictions that do not separate church and state, and may, in fact, embed discrimination through religious doctrine. This, in turn, creates an obvious tension between the Establishment and Equal Protection Clauses under the federal constitution [and similar state provisions]....

Perpetuating such discrimination under the guise of judicial sensitivity to Establishment Clause prohibitions would, in effect, abdicate the judiciary’s overall constitutional role to protect such fundamental rights.... Even assuming this Court could interpret the contract, it would then be put in the dilemma of fashioning a remedy under a contract that clearly emanates from a legal code that may be antithetical to Kansas law.  

Volokh Conspiracy has more on the decision. [Thanks to Steven H. Sholk for the lead.]

Iranian Pastor, Originally Sentenced To Death, Is Released From Custody

According to the London Mail, Iranian Christian pastor Youcef Nadarkhani has been released from prison after extensive pressure from foreign governments.  Last year, Nadarkhani (who was born to Muslim parents) was convicted by a provincial court of apostasy and sentenced to death. On appeal, Iran's Supreme Court upheld the death sentence, but remanded to the lower court for re-examination of  whether Nadarkhani had been a practicing Muslim adult before converting to Christianity. The Supreme Court also said that the death sentence could be overturned if Nadarkhani recanted. However the 34-year-old pastor refused to do so. (See prior posting.)  At a hearing on Saturday, charges against Nadarkhani were reduced to evangelizing Muslims, which carries a 3-year sentence.  He was released from custody for time served. [Thanks to Pew Sitter for the lead.]

Florida Democratic County Official Resigns Over His Remarks About Christian Supporters of Israel

The Palm Beach Post reports that Palm Beach County, Florida, Democratic Party Chairman Mark Alan Siegel resigned Friday, two days after making controversial remarks about pro-Israel Christians.  Interviewed at the Democratic National Convention by Patriot Update's Scottie Hughes, Siegel-- who is Jewish-- said of Christians who support Israel:

They’re not our friends. They want Israel to pursue policies which are antithetical with its security and existence. The worst possible allies for the Jewish state are the fundamentalist Christians, who want Jews to die and convert so they can bring on the second coming of their Lord. It is a false friendship. They are seeking their own ends and not ours.

After initially saying that he would merely take a leave of absence, Siegel then resigned completely, saying: "My comments merely served as a distraction to the good work of Democrats in Palm Beach. Again, I express my deepest apologies to anyone I may have offended."

Presbyterian Congregation's Property Belongs To Parent Church

In Windwood Presbyterian Church, Inc. v. The Presbyterian Church (USA), (TX App., Aug. 30, 2012), a Texas appeals court held that under both the rule of deference to decisions of a parent hierarchical church and the application of neutral principles of law, the property of a Houston, Texas Presbyterian congregation belongs to the parent church. The court concluded:

by joining the PCUSA in 1983 and remaining a member of that hierarchical church, Windwood has assented to following PCUSA’s constitution, which includes a trust provision over Windwood’s property in PCUSA’s favor.

Recent Articles of Interest

From SSRN:

• Christopher C. Lund, The Future of the Establishment Clause in Context: A Response to Ledewitz, (Chicago-Kent Law Review, Vol. 87, p. 767, 2012, symposium).
• Nicholas Walter, Religious Arbitration in the United States and Canada, (Santa Clara Law Review, Vol. 52, No. 2, 2012).
• Michael A. Helfand, Religion's Footnote Four: Church Autonomy as Arbitration, (Minnesota Law Review, Vol. 97, Forthcoming).
• Robert W. Nicholson, Managing the Divine Jurisdiction: Sacred Space and the Limits of Law on the Temple Mount (1917-1948), (August 31, 2012).
• Justin Pierce, Blasphemy: Religious or Secular Law?,  (September 5, 2012).
• Robert C. Blitt, Springtime for Freedom of Religion or Belief: Will Newly Democratic Arab States Guarantee International Human Rights Norms or Perpetuate Their Violation?, (September 8, 2012).
• Beverley Baines, Polygamy and Feminist Constitutionalism, (in B. Baines, D. Barak-Erez, and T. Kahana, eds., Feminist Constitutionalism: Global Perspectives, Cambridge University Press, 2012).

President Declares This Weekend As Days of Prayer and Remembrance For 9-11 Victims

Last Friday, as we near the 11th anniversary of the 9-11 attacks, President Barack Obama issued a Proclamation (full text) declaring September 7 through 9 as National Days of Prayer and Remembrance for the victims of 9-11.

Recent Prisoner Free Exercise Cases

In Morris v. Morrison, (8th Cir., Aug. 31, 2012), the 8th Circuit Court of Appeals affirmed an Iowa district court's dismissal on qualified immunity grounds of a prisoner's lawsuit alleging damage to religious property during a prison cell search.

In Davilla v. National Inmate Appeals Coordinator, 2012 U.S. Dist. LEXIS 124451 (SD GA, Aug. 31, 2012), a Georgia federal district court, disagreeing in part with a magistrate's recommendation, permitted an inmate to proceed with his 1st Amendment challenge to prison policies that bar him from receiving religious items (here Santeria beads and cowrie divination shells) through authorized vendors.  The court also allowed plaintiff to proceed with his claim for injunctive relief under RFRA, but held that damages are not recoverable as a remedy under RFRA. UPDATE: The magistrate's recommendation is at 2012 U.S. Dist. LEXIS 130391, June 15, 2012).

In Oliverez v. Albitre, 2012 U.S. Dist. LEXIS 124553 (ED CA, Aug. 31, 2012), a California federal magistrate judge recommended that an inmate be permitted to proceed with his 1st Amendment claim against the chaplain's office Native American spiritual leader, but not against the warden, for denying him access to his previously-purchased spiritual oil for worship.

In Mendez v. Trevino, 2012 U.S. Dist. LEXIS 124591 (ED CA, Aug. 30, 2012), a California federal magistrate judge dismissed, with leave to amend, a suit by a Native American "Yaqui" Indian whose religious practice involves both Native American and Christian elements. He was not allowed to attend Native American services because he was already attending Christian services and because of hearsay information of drug usage and beadwork sale.

In Jones v. Petty, 2012 U.S. Dist. LEXIS 124850 (MD GA, Sept. 4, 2012), a Georgia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 124849, Aug. 2, 2012) and dismissed a Muslim inmate's complaint that he was prevented from practicing Ramadan, obtaining a prayer rug and religious books, obtaining his prayer towel, and obtaining a pork-free breakfast tray.

In Walters v. Santa Clara Department of Corrections Elmwood Facility Commander 2012 U.S. Dist. LEXIS 125281 (ND CA, Sept. 4, 2012), a California federal district court permitted a Muslim inmate to proceed with his 1st Amendment, RLUIPA and equal protection complaints alleging failure to provide him an adequate religious diet.

In Countryman v. Palmer, 2012 U.S. Dist. LEXIS 125224 (D NV, Aug. 6, 2012), a Nevada federal magistrate judge recommended denial of a preliminary injunction in a suit by an Episcopalian inmate who objected to the prison's cancellation of a planned 3-day event by the Kairos Prison Ministries.

In Malipurathu v. Jones, 2012 U.S. Dist. LEXIS 124988 (WD OK, Sept. 4, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 124983, June 14, 2012) and rejected complaints of a Sikh inmate who had been dismissed from a drug treatment program in which he had been placed in lieu of incarceration. Plaintiff objected that the program included Christian-based prayers.

In Howard v. Wiglesworth, 2012 U.S. Dist. LEXIS 125617 (SD MI, Sept. 5, 2012), a Mississippi federal magistrate judge dismissed a lawsuit by a Rastafarian inmate complaining that no Rastafarian religious services were offered (no one was available to lead them), and claiming that he was not provided a religious diet or permitted to wear his dreadlocks.

In Jahad Ali #56036 v. Clements, 2012 U.S. Dist. LEXIS 125612 (D CO, Sept. 4, 2012), a Colorado federal magistrate judge ruled that an inmate's complaint that prison authorities refused to honor a 1992 agreement to recognize his religious and legal name needed to be amended within 30 days to set forth appropriate allegations or it will be dismissed.

In Manson v. Sexton, 2012 U.S. Dist. LEXIS 125750 (ND AL, Sept. 5, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 125733, Aug. 8. 2012) and dismissed without prejudice an inmate generalized claim that he was provided religious materials that were not "necessarily of [his] belief."

Pakistani Girl Charged With Blasphemy Released On Bail

In Pakistan today, Rimsha Masih, a Christian girl being held on controversial blasphemy charges, was released on 1 million rupees ($10,500 US) bail. The New York Times reports that Masih was driven away in secrecy from a Rawalpindi prison to a waiting helicopter. The court found that she is 14 years old, with a mental capacity lower than that.  Masih, who works as a sweeper, was charged with burning pages from a holy book, while a Muslim cleric was charged with planting pages from the Qur’an to make her actions appear worse. (See prior posting.) The case has been widely publicized internationally as an example of abuses in the use of Pakistan’s blasphemy laws.

Suit Challenging Exclusion From Courtroom Because of Religious Headdress Can Proceed Against City

In Daniels v. City of North Charleston, 2012 U.S. Dist. LEXIS 126314 (D SC, Sept. 6, 2012), a South Carolina federal district court adopted a magistrate’s recommendations (2012 U.S. Dist. LEXIS 126767, Aug. 9, 2012) and permitted plaintiff (an adherent of the East African Hebrew religion) to move ahead with several of his claims growing out of the refusal of Municipal Court constables to allow him to enter the court room wearing religious headdress . The court allowed plaintiff to proceed on his charges that the city violated his free exercise rights under the federal constitution as well as under the South Carolina Religious Freedom Act. It also allowed him to proceed on certain common law claims. However religious discrimination and other constitutional claims against the constables in their individual capacities were dismissed on the basis of quasi-judicial immunity.

Feds Concur In Eliminating Offensive Name Of New Hampshire Pond

The Nashua (NH) Telegraph reports today that the U.S. Board of Geographic Names has officially approved the name change of a small pond in Mont Vernon, Hew Hapmshire so that it is no longer officially known as "Jew Pond." Instead its official name is now "Carleton Pond", though the USGS still lists" Jew Pond," as well as "Spring Pond," as a "variant name." The pond was created for a local hotel a century ago by damming a small brook. Originally called Spring Pond, it began to be called Jew Pond in the 1930's when the hotel was owned for a few years by Jewish businessmen from Boston. The name Jew Pond, which was seen as offensive by many, was changed by the town after the town's health officer, Rich Masters, raised the issue last year.

Missouri Bishop Convicted Of Failing To Report Suspicion of Child Abuse

Yesterday in Kansas City, Missouri, a state court judge after a brief non-jury trial convicted Catholic Bishop Robert W. Finn on one misdemeanor count of failing to report suspicion of child abuse (MRS 210.115). According to the Kansas City Star, this makes Finn the highest ranking U.S. Catholic cleric convicted in the Church's sex abuse scandals.  The charges grew out of the Church's discovery in December 2010 of hundreds of lewd photos of young girls on the laptop computer of of priest Shawn Ratigan. Police were not notified until May 2011. Finn was convicted on a charge covering the period from Feb. through May 2011, while he was acquitted on a second charge covering an earlier period of time. Finn was sentenced to two years' probation. If he complies with all the conditions, his criminal conviction could then be expunged.  Those conditions include strengthening training for clergy and administrators on child abuse reporting and recognizing child pornography; creating a $10,000 victim counseling fund; drawing up an approved list of treatment providers; and maintaining an ombudsman. Originally Finn's case had been set for a jury trial, but prosecutors and defense attorney instead yesterday submitted 69 paragraphs of stipulated facts in a bench trial. In exchange for his cooperation in the case, authorities agreed not to prosecute second-ranking diocese official, Monsignor Robert Murphy, who ultimately reported suspicions to the police.

Fact Issues Remain In Nursing Aide's Firing After Refusing To Pray Rosary With Resident

Norbach v. Woodland Village Nursing Home Center, Inc., (SD MI, Sept. 4, 2012), is a Title VII religious accommodation lawsuit filed by a woman who was employed as an activity aide at a nursing home.  She was fired for insubordination after she refused to pray the rosary with a Catholic resident suffering from Alzheimer's disease. A Mississippi federal district court refused defendant's motion for summary judgment finding that a number of material questions of fact remain to be determined.  These include whether there were also other reasons for plaintiff's termination, whether praying the rosary conflicts with her religious beliefs and whether the nursing home could make a reasonable accommodation of her beliefs without experiencing an undue hardship. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

9th Circuit Hears Oral Arguments In Religious Workers' Visa Case

Last week (Aug. 27), the U.S. 9th Circuit Court of Appeals heard oral arguments in Ruiz-Diaz v. United States. In the case, a Washington federal district court rejected a challenge to immigration rules that treat religious workers applying to adjust their immigration status to become permanent residents differently from those in various other employment-based preference categories. (See prior posting.) An audio recording of the full arguments is available online, and Courthouse News has a summary of the oral arguments. Appellants argued  in part that delays in the adjustment of status may lead to a religious worker having to leave the country and a church being deprived of the right to practice its religion because it cannot find a replacement.

South Dakota High Court Dismisses Claims Based On Sex Abuse At Indian Reservation School

As reported by the Sioux City Journal, the South Dakota Supreme Court on Wednesday, in two opinions, dismissed several claims that had been filed by a number of former students of St. Paul's School on the Yankton Indian Reservation.  Plaintiffs claimed they had been sexually abused over 35 years ago while attending the boarding school that was operated by various Catholic religious orders and organizations.  In Bernie v. Blue Cloud Abbey, (SD Sup. Ct., Sept. 5, 2012), the court held that the extended statute of limitations for childhood sexual abuse in effect when the suit was filed does not extend the time for filing suit against the religious orders or the Diocese of Sioux Falls, as opposed to the claims against the perpetrators themselves. The extended limitation period only applies to suits alleging intentional conduct involving an act that would have constituted a felony. It does not apply to claims against "non-perpetrating defendants who are sued for negligence or on other theories of liability not involving intentional, criminal conduct."

In Bernie v. Catholic Diocese of Sioux Falls, (SD Sup. Ct., Sept. 5, 2012), the South Dakota Supreme Court rejected a respondeat superior claim against the Diocese of Sioux Falls because the alleged acts "were solely in the perpetrators’ own interests and were not in furtherance of the pursuit of any Diocesan business."  It also rejected negligence and breach of fiduciary duty claims against the Diocese because plaintiffs failed to show an agency relationship between the Diocese and the religious orders operating the school. Nor did the Diocese's relationship with the students create a fiduciary duty of protection.

Military Judge Orders Hasan To Shave Beard, Rejecting RFRA Claim

Yesterday at Fort Hood, Texas, a military judge in the court martial of accused mass killer Maj. Nidal Hasan has ordered Hasan to shave his beard or be forcibly shaved. The New York Times and a press release from Ft. Hood provide details on the decision. Hasan claims he has grown the beard for religious reasons.  The judge, Col. Gregory Gross, ruled that the Religious Freedom Restoration Act applies to court martial proceedings, but that the government has a compelling interest in requiring Hasan to shave because his wearing the beard would make it more difficult for witnesses to identify him.  The prosecution also introduced evidence that Hasan grew the beard in part to identify himself with the radical Islamic Mujahedeen. Col. Gross ruled that his order will not be carried out until Hasan has a chance to appeal the ruling.

Minnesota Board Exempts Catholic Organization Employee's Pro-Gay Marriage Contribution From Disclosure

Minnesota Statutes 10A.20 requires every political committee to file disclosure reports identifying anyone who has contributed over $100 to a candidate or to a campaign for a ballot issue, but allows an exemption where an individual "demonstrates by clear and convincing evidence that disclosure would expose the ... contributor to economic reprisals, loss of employment, or threat of physical coercion."  In an interesting decision last month in In re Application of John Doe, (MN Campg. Fin. & Pub. Discl. Bd., Aug. 7, 2012), the Minnesota Campaign Finance and Public Disclosure Board granted an exemption to an employee of a Catholic organization who had contributed $600 to an organization that opposes the Marriage Amendment that will appear on the November ballot. That proposed amendment provides that "only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota." The contributor argued that "because his job requires him to represent the Catholic organization’s policies to others from time to time, if his opposition to the marriage amendment was known, it would cause immense strain in his working relationships." The Board concluded that "Mr. Doe has established by clear and convincing evidence that the itemized report of his contribution to Minnesotans United for All families would expose him to the loss of his employment." Dale Carpenter at Volokh Conspiracy has more on the decision.