Recent Prisoner Free Exercise Cases

In Dominguez v. Department of Mental Health, 2012 U.S. Dist. LEXIS 138637 (ED CA, Sept. 26, 2012), a California federal magistrate judge's recommendation concluded that the California Department of Corrections and Rehabilitation has 11th Amendment immunity from damages or retrospective injunctive relief in an inmate's claim that his free exercise rights as a Native American were infringed.

In Fulbright v. Jones, 2012 U.S. Dist. LEXIS 138355 (WD OK, Sept. 26, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 138351, Aug. 13, 2012) and held that a 2006 injunction in another case ordering kosher meals for inmates covered only the plaintiffs in that case and cannot be used by another inmate to now receive kosher meals.

In Wilson v. Rascoe, 2012 U.S. Dist. LEXIS 136771 (ND MS, Sept. 25, 2012), a Mississippi federal district court dismissed an inmate's complaint that in one instance when he was in lock down, authorities took so long to respond to his call button that he missed Sunday church services.

In Janali v. Corrections Corporation of America, 2012 U.S. Dist. LEXIS 136905 (SD MS, Sept. 25, 2012), a Mississippi federal district court refused to adopt a magistrate's recommendation (2012 U.S. Dist. LEXIS 136906, Sept. 4, 2012) that claims of a Shia Muslim inmate for separate religious services and a halal diet be dismissed. The court held instead that there should first be a ruling on whether plaintiff's RLUIPA claims are properly before the court (or should be allowed in an amended complaint), and whether discovery should be permitted.

In Ross v. Duby, 2012 U.S. Dist. LEXIS 137465 (WD MI, Sept. 26, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 138402, Sept. 10, 2012) and dismissed an inmate's claim for damages growing out of a refusal to supply him with a kosher diet. Plaintiff failed to prove that his belief is religious in his own scheme of things or is sincerely held.

In Marzett v. Brown, 2012 U.S. Dist. LEXIS 140199 (ED LA, Sept. 26, 2012), a Louisiana federal district court allowed an inmate to proceed with his claim that prison officials are completely stifling his observance of his Muslim faith, denying Muslim religious services, clergy and materials.

In Ford v. Smith, 2012 U.S. Dist. LEXIS 140466 (ND NY, Sept. 28, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 140453, Aug. 17, 2012) and dismissed claims by a Nation of Islam inmate that this free exercise and RLUIPA rights were infringed when he was denied hot water to prepare oatmeal for his pre-dawn Ramadan meals.

Bible Publisher Sues Challenging Contraception Coverage Mandate

A lawsuit filed yesterday by the Bible publishing company Tyndale House joins the long line of lawsuits challenging the Obama administration's contraceptive coverage mandate under the Affordable Care Act. The complaint (full text) in Tyndale House Publishers, Inc. v. Sebelius, (D DC, filed 10/2/2012) alleges that:

Tyndale and its owners are Christians who are committed to biblical principles, including the belief that all human beings are created in the image and likeness of God from the moment of their conception/fertilization.  But Defendants’ recently enacted regulatory mandate under PPACA forces Tyndale to provide and pay for drugs and devices that it and its owners’ believe can cause the death of human beings created in the image and likeness of God shortly after their conception/fertilization.

An ADF press release announcing the filing of the lawsuit explains:

The publisher is subject to the mandate because Obama administration rules say for-profit corporations are categorically non-religious, even though Tyndale House is strictly a publisher of Bibles and other Christian materials and is owned by the non-profit Tyndale House Foundation. 

Liberal Egyptian Party Files Criminal Complaint Over Fatwa Issued Against It

Egypt's Constitution Party which was formed last August to provide a liberal alternative to Islamist parties last week filed a complaint with prosecutors over a religious fatwa issued against it.  Ahram Online reports that Mohamed El-Athry, an Islamist sheikh and member of Egypt's Constituent Assembly issued a widely-circulated fatwa prohibiting anyone from joining the Constitution Party.  Salafist preacher Wagdy Ghoneim posted a video online strongly supporting the fatwa and calling the Constitution Party an infidel organization.  Last Thursday the Constitution Party filed a complaint with the supreme state security prosecutors charging El-Athry and Ghoneim with slander and public insult.

California Governor Signs Law Excusing Objecting Clergy From Performing Same-Sex Weddings

In California, on Sept. 30, Gov. Jerry Brown signed SB 1140 making it clear that clergy who object to same-sex marriage need not perform same-sex ceremonies.  The new law defines marriage as a civil, not a religious, contract. It also provides that no member of the clergy shall be required to solemnize a marriage that is contrary to his or her faith. Refusal to do so will not affect the tax exempt status of any entity. LGBT Weekly reports on the new law.

Religious Worker Visa Program Extended For 3 Years

On Sept. 28, President Obama signed into law S. 3245, a bill that, among other things, extends for 3 years the Special Immigrant Nonminister Religious Worker Program. JTA reports that the program makes up to 5,000 visas a year available to religious workers of all religious persuasions.

Street Preacher Succeeds In His Suit Against Noise Ordinance

In Hampsmire v. City of Santa Cruz, (ND CA, Sept. 28, 2012), a California federal district court, in a suit by a Christian street preacher, struck down as void for vagueness the city of Santa Cruz's noise ordinance which provides:

No person shall make, cause, suffer or permit to be made any noises or sounds (a) which are unreasonably disturbing or physically annoying to people of ordinary sensitiveness or which are so harsh or so prolonged or unnatural or unusual in their use, time or place as to cause physical discomfort to any person, and (b) which are not necessary in connection with an activity which is otherwise lawfully conducted.

The court said, in enjoining enforcement of the ordinance in its present form, said: "While the prohibition on 'unreasonably disturbing' noises establishes an objective standard, the 'necessary' exemption is not similarly tethered to any identifiable criteria."

Court Dismisses Challenge To "Year of the Bible" Resolution Despite Harsh Words About It

In Freedom From Religion Foundation, Inc. v. Saccone, (MD PA, Oct. 1, 2012), a Pennsylvania federal district court, while finding that plaintiffs had standing, dismissed on legislative immunity grounds a lawsuit challenging as an Establishment Clause violation a Pennsylvania House of Representatives resolution declaring 2012 to be the "Year of the Bible." (See prior posting.)  The court however made it clear that despite the dismissal, it has considerable problems with the resolution:

... the court’s determination that the defendants engaged in a "legislative act" for purposes of immunity should not be viewed as judicial endorsement of this resolution. It most certainly is not.  At best, H.R. 535 is a benign attempt to reaffirm the underlying principles of the Reagan proclamation of 1983.  At worst, it is premeditated pandering designed to provide a reelection sound bite for use by members of the General Assembly.  But regardless of the motivation behind H.R. 535, its express language is proselytizing and exclusionary.... The court is compelled to shine a clear, bright light on this resolution because it pushes the Establishment Clause envelope behind the safety glass of legislative immunity.  That it passed unanimously is even more alarming.  This judicial rebuke of the resolution is not intended to impugn the religious beliefs of any citizen.  To the contrary, the court’s disapprobation is directed to the blatant use of legislative resources in contravention of the spirit – if not the letter – of the Establishment Clause.  At a time when the Commonwealth of Pennsylvania faces massive public policy challenges, these resources would be far better utilized in meaningful legislative efforts for the benefit all of the citizens of the Commonwealth, regardless of their religious beliefs.

The Philadelphia Inquirer reports on the decision.

California Governor Signs Law Banning Reparative Therapy For Minors; 2 Lawsuits Threatened

As reported by AP, in California on Saturday Gov. Jerry Brown signed SB No. 1172, a bill that prohibits mental health professionals from engaging in sexual orientation change efforts (so-called reparative therapy) with a patient under 18 years of age.  The new law applies only to licensed therapists, not clergy who advise young people. But it will impact licensed Christian psychotherapists who counsel teenage clients.  Two Christian legal groups, the California-based Pacific Justice Institute and Florida-based Liberty Counsel have announced that they will file federal lawsuits challenging the law's constitutionality.

UPDATE: The full text of the complaint in Liberty Counsel's lawsuit, Pickup v. Brown, (ED CA, filed 10/4/2012) is available online, while ABC News reports on details of the Pacific Justice Institute's suit.

Supreme Court Term Opens With Several Items of Interest

Yesterday the U.S. Supreme Court opened its new term. As reported by the Huffington Post, on Sunday, a day before the new term opened, six of the justices attended the annual Red Mass that is sponsored by the John Carroll Society. In attendance at the Cathedral of St. Matthew the Apostle were Justices John Roberts, Antonin Scalia, Elena Kagan, Anthony Kennedy, Clarence Thomas and Stephen Breyer.  Archbishop Timothy P. Broglio, Archbishop for the Military Services, USA, delivered the homily (full text).

As usual on the first day of the term, the Court issued a large number of orders (over 2000). (Order List.)  Among those, it denied certiorari in two cases of interest.  It refused review in Presbytery of of South Louisiana v. Carrollton Presbyterian Church, (Docket No. 11-1393). In the case a Louisiana state appellate court upheld the right of a Presbyterian congregation to sell real property titled in its name.  It held that a provision in the PCUSA's Book of Order regarding rights of the parent church does not apply to this case. (See prior posting.)

The Court also denied review in Rubashkin v. United States, (Docket No. 11-1203).  In the case, the U.S. 8th Circuit Court of Appeals rejected a motion for a new trial and a challenge to the length of the sentence imposed on Sholom Rubashkin, the Orthodox Jewish former vice president of the kosher meat processing firm, Agriprocesors, in Postville, Iowa. Rubashkin was convicted on financial fraud charges. (See prior posting.)

In a somewhat unusual move, the Court ordered the United States, the defendant, to file a response to the motion for a rehearing in Liberty University v. Geithner, (Docket No. 11-438), a case involving challenges to the Affordable Care Act. The Court had previously denied certiorari in the case in which a majority of a 4th Circuit  panel concluded that the federal tax Anti-Injunction Act bars consideration of the challenge to the law. (See prior posting.) In a press release, Liberty Counsel explains that it is seeking the rehearing because the Supreme Court in its decision in other cases last June decided that the Anti-Injunction Act does not apply.  Plaintiffs want their case remanded, now that the procedural hurdle is removed, for consideration of their free exercise and RFRA claims regarding alleged funding of abortions.

PUBLICATION SCHEDULE: LOOK FOR NEW POSTINGS ON TUESDAY NIGHT

Recent Articles of Interest

From SSRN:

• Robert Eli Rosen, The Victimizer's Path to Forgiveness: A Jewish Perspective, (Peace, Justice & Development: Essays in Sociology of Law for the 21st Century, Arvind Agrawal & Vittorio Olgiati, eds., Hart Publishing, Forthcoming).
• Nomi Maya Stolzenberg, Political Theology with a Difference, (Forthcoming in University of California Irvine Law Review).
• Diana Ginn, Comment on Canadian Freedom of Religion Case, (Jurist, Forthcoming).
• Brett Freudenberg and Mahmood Nathie, Chasing Islamic Finance: A Framework to Assess the Potential Benefits of Australian Tax Reforms to Facilitate Islamic Finance, (Review of Business, Vol. 32, No. 2, pp. 58 - 70, 2012).
• Richard W. Garnett and Andrew M. Koppelman, The Many Paths to Neutrality, (in First Amendment Stories, Foundation Press, 2012,  Garnett & Koppelman, eds.).
• Richard Schragger and Micah Schwartzman, Against Religious Institutionalism, (Virginia Law Review, Forthcoming 2013).
• Farooq Aziz and N.R. Khan, Refutation of Private Ownership of Land: An Islamic Perspective, (Journal of Islamic Economics, Banking and Finance, 8(2), 81-90, 2012).
• Imran Hussain Minhas, Shari'ah Governance Model (SGM) and Its Four Basic Pillars, (Islamic Finance News Malaysia Published by Red Money Publication, 2012).
• Rebecca Maret, Mind the Gap: The Equality Bill and Shari'a Arbitration Tribunals in the United Kingdom, (Boston College Law Review, Vol. 1, 2012).

From SmartCILP:

• Marci A. Hamilton, RLUIPA Is a Bridge Too Far: Inconvenience Is Not Discrimination, [Abstract], 39 Fordham Urban Law Journal 959-987 (2012).
• John Hursh, Advancing Women's Rights Through Islamic Law: The Example of Morocco, 27 Berkeley Journal of Gender Law & Justice 252-305 (2012).
• Charles Kelbley, Modeling Church and State: The Ideological Use of History in Establishment Clause Jurisprudence, [Abstract], 38 Ohio Northern University Law Review 639-700 (2012).
• Alan C. Weinstein, The Effect of RLUIPA's Land Use Provisions on Local Governments, 39 Fordham Urban Law Journal 1221-1248 (2012).

Russian City Halts Ticket Sales For Musical To Consider Religious Offense Complaint

Russia's Duma is considering amendments to the country's criminal code to specifically outlaw causing of religious offense.  As reported last week by RIA Novosti, the bill was drafted in the wake of the sentencing of 3 members of the punk rock group Pussy Riot for hooliganism after their performance in a Moscow cathedral. The proposed law would impose a sentence ranging from a fine to up to 5 years in prison for violation of its prohibitions. Apparently relying on the proposed legislation, 18 Orthodox Christian private citizens in the Russian city of Rostov-on-Don have complained to the city about the scheduled performance of the rock opera Jesus Christ Superstar. They contend that it is an inaccurate portrayal of Jesus. RT reported yesterday that the city administration has ordered the theater to stop selling tickets for the performance while the city considers the complaint.

Diocese Fails To Get Summary Judgment In Suit To Hold It Responsible For Clergy Sexual Abuse

In Colomb v. Roman Catholic Diocese of Burlington Vermont, Inc., (D VT, Sept. 28, 2012), a Vermont federal district court refused to grant summary judgment to a Catholic diocese in a suit that is seeking to hold it responsible for sexual abuse in the 1970's by  Father Edward Paquette and other priests. First the court ruled that it is impossible to rule as a matter of law that the statute of limitations has run since it must be determined when plaintiff made the connection between his longstanding psychological issues and the sexual abuse he suffered as a child. It also refused to grant summary judgment based on various objections to the way in which damages are awarded and rejected the claim that the 1st Amendment precludes a suit against the diocese for negligent hiring or supervision.

Recent Prisoner Free Exercise Cases

In Fistell v. Suthers, 2012 U.S. Dist. LEXIS 133718 (D CO, Sept. 19, 2012), a Colorado federal district court refused to hold prison authorities in contempt of a prior injunction for their failure to furnish an inmate a kosher meal for breakfast and lunch on one day while the prison was on lock down because of a power outage. Kosher meals had been furnished during numerous other lock downs.

In Rice v. Ramsey, 2012 U.S. Dist. LEXIS 134284 (ND CA, Sept. 18, 2012), a California federal district court dismissed on the merits an inmate's complaint that AEM Muslims were refused separate access to the interfaith chapel to conduct classes and their request to hire a full or part time AEM imam was denied.  Plaintiff's complaint regarding denial of Suhoor meals was dismissed for failure to exhaust administrative remedies.

In Cato v. Ramos, 2012 U.S. Dist. LEXIS 134163 (WD NY, Sept. 19, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 134150, Aug. 10, 2012) and dismissed an inmate's claim that a staffer at the prison facility where he was formerly housed interfered with the provision of Rastafarian holy day meals and discriminated against Rastafarian inmates.

In Native American Council of Tribes v. Weber, 2012 U.S. Dist. LEXIS 133937 (D SD, Sept. 19, 2012), a South Dakota federal district court held that the South Dakota prison system violated RLUIPA when it banned all tobacco, including its use in Native American religious ceremonies. According to the court: "the ban was implemented to effectuate what defendants believed was the advice of the medicine men and spiritual leaders regarding the Lakota religion rather than due to security reasons. Defendants essentially enforced what they determined to be the more "traditional" Lakota belief. But the state may not determine what is "traditional" or "orthodox" within a certain religious tradition."

In Reeder v. Hogan, 2012 U.S. Dist. LEXIS 134709 (ND NY, Sept. 19, 2012), a New York federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 134710, July 11, 2012) and dismissed an inmate's suit against the prison's "grievance sergeant" complaining about not receiving Ramadan meals.

In Rowser v. Desousa, 2012 U.S. Dist. LEXIS 134858 (SD NY, Sept. 17, 2012), a New York federal district court dismissed a suit by an inmate complaining about an attempted strip frisk that violates Muslim religious rules.

In Myers v. Burdick, 2012 U.S. Dist. LEXIS 135999 (ED WI, Sept. 24, 2012), a Wisconsin federal district court permitted an inmate to proceed with his RLUIPA claim (but not his free exercise or equal protection claims) challenging the prison system's policy on tarot cards. The court held that "a factfinder could conclude that a total denial of all tarot cards other than the Aquarian Tarot and specifically the denial of the Golden Dawn Tarot and its companion book, was not the least restrictive means of furthering a compelling governmental interest."

In Coleman v. Allen, 2012 U.S. Dist. LEXIS 135816 (MD AL, Sept. 24, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 136411, Sept. 7, 2012) and dismissed claims by a Native American inmate regarding constraints on religious ceremonies, ordering of religious items, use of sweat lodge and tobacco, interruption of religious services, and access to ceremonial grounds at the prison in which he was formerly held.

In Riley v. DeCarlo, 2012 U.S. Dist. LEXIS 137279 (WD PA, Sept. 25, 2012), a Pennsylvania federal district court dismissed a complaint by a Muslim inmate that he was not furnished with a Halal diet.

In Bonilla v. Annucci, 2012 U.S. Dist. LEXIS 137235 (ND NY, Sept. 25, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 137241, Aug. 16, 2012), and permitted inmates who are members of Nations of Gods and Earth to move ahead with their free exercise and RLUIPA claims regarding restrictions on congregative opportunities and wearing crowns (but not as to restrictions on displaying symbols, flag and texts). The court also allowed plaintiffs to move ahead with their equal protection challenges to restrictions on displaying NGE symbols and the Universal Flag, wearing crowns, and on congregating for services, classes, and on Honor Days.

Court Refuses To Enjoin Enforcement of Missouri's House of Worship Protection Act

In Survivors Network of Those Abused by Priests v. Joyce,  (ED MO, Sept. 28, 2012), a Missouri federal district court refused to issue a preliminary injunction to prevent enforcement of Missouri's House of Worship Protection Act against a group representing clergy sex abuse victims.  SNAP, which engages in peaceful picketing and leafleting outside of churches, claims the recently effective law infringes their free speech rights and is unconstitutionally vague. The court, however, held that plaintiffs failed to show a likelihood of success on the merits of their claims. It concluded that the statute is a content-neutral time, place and manner regulation:

Plaintiffs here, as peaceful demonstrators, face relatively minimal restriction on their activities.  They may freely walk on the public areas adjacent to houses of worship, carry signs and banners, and distribute leaflets communicating their message before services, when services are not being held, and Plaintiffs may do so even during worship services, as long the manner in 

The court also rejected plaintiffs' claim that both the definition of "house of worship" and the definition of the prohibited conduct are overly broad and vague:

What the statute prohibits is willful behavior intended to interfere with the successful conduct of a worship service. The probability that a reasonable person would not understand any of the common terms used to describe the prohibited behavior is quite remote.

Court Rejects Religious Liberty Challenges To Contraceptive Coverage Mandate of Affordable Care Act

In an important and extensively reasoned opinion handed down yesterday, a Missouri federal district court rejected a series of challenges to the contraceptive coverage mandate of the Affordable Care Act brought by a small business organized as a limited liability company and by its sole owner who is Catholic.  Plaintiffs claimed that the mandate burdens their exercise of religion.  In O’Brien v. U.S. Department of Health and Human Services, (ED MO, Sept. 28, 2012), Judge Carol E. Jackson (a President George H. W. Bush appointee) first held that she need not decide whether O’Brien Industrial Holdings (“OIH”), a secular limited liability company, is capable of exercising religion within the meaning of the Religious Freedom Restoration Act or the First Amendment because, even if it is, the contraception coverage mandate does not infringe religious exercise rights.

Focusing on RFRA, the court held:

the challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs…. [P]laintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise….

… [T]he health care plan will offend plaintiffs’ religious beliefs only if an OIH employee (or covered family member) makes an independent decision to use the plan to cover counseling related to or the purchase of contraceptives.   Already, OIH and Frank O’Brien pay salaries to their employees---money the employees may use to purchase contraceptives or to contribute to a religious organization. By comparison, the contribution to a health care plan has no more than a de minimus impact on the plaintiff’s religious beliefs than paying salaries and other benefits to employees.

Moving to the 1st Amendment Free Exercise claim, the court held that the preventive services regulations under the ACA are a neutral law of general applicability, and thus consistent with the 1st Amendment.  It also rejected plaintiffs’ arguments that the religious employer exemption in the regulations violates the Establishment Clause by favoring organized religion over less formal manifestations of faith or by excessively entangling the government with religion in determining whether an organization qualifies for the exemption.

The court then rejected plaintiff’s 1st Amendment “compelled speech” argument, saying:

There is an important distinction between the instant case and the Supreme Court’s compelled speech subsidy cases: plaintiffs in this case are not subsidizing speech. The plaintiffs’ contribution to their employees’ receipt of health care benefits (as required by the regulations) is conduct, not speech. It is true that the receipt of health care benefits often includes a conversation between a doctor and a patient, and the preventive services coverage regulations encompass “patient education and counseling for all women with reproductive capacity.” … However, this speech is merely incidental to the conduct of receiving health care.

Finally the court rejected plaintiffs Administrative Procedure Act arguments. It found that plaintiffs lack standing to assert one of their APA claims. They do have standing to assert that under the APA the regulation is arbitrary and capricious. However the court rejected plaintiffs’ claim that the government in adopting the mandate arbitrarily and capriciously ignored the impact of the regulation on secular, for-profit employers with religious values.

Subsidy To Churches Raises Establishment Clause Issues For Publicly Owned Electric Company

Santiago-Ramos v. Autoridad De Energia Electrica, (D PR, Sept. 18, 2012), is a lawsuit by an economic development corporation and one of its members against the Puerto Rico Electric Power Authority alleging broadly that the public electric power company is used by the political party in power to favor various interests at the expense of ordinary consumers of electricity.  The complaint alleges a number of statutory and constitutional violations. Among the claims that the court refused to dismiss was the contention that the PREPA has promoted religion in violation of the Establishment Clause by giving $3,500,000 in subsidies to churches (and other non-profit organizations).

Court Says Questions Remain On Accommodation of Hebrew Israelite Employee

In Batson v. Branch Banking and Trust Company, (D MD, Sept. 25, 2012), a Maryland federal district court denied defendant's motion for summary judgment, finding that substantial questions of fact remain as to whether a bank reasonably accommodated the religious needs of a Hebrew Israelite teller who was fired for not being willing to work on alternate Saturdays. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

5th Circuit Reverses Denial of Preliminary Injunction In Church's RLUIPA Suit

In Opulent Life Church v. City of Holly Springs Mississippi, (5th Cir., Sept. 27, 2012), the U.S. 5th Circuit Court of Appeals vacated a Mississippi federal district court's denial of a preliminary injunction in a Christian church's RLUIPA zoning suit and remanded the case for further findings.  The appeals court held that the Opulent Life Church had shown irreparable harm by being unable to use a building it had agreed to lease.  On the eve of oral arguments in the 5th Circuit, the city repealed the zoning conditions that had created problems for the church and replaced them with a total ban on religious congregations in the Business Courthouse Square District where the church's building was located.  Rejecting mootness and ripeness challenges to the lawsuit, the appeals court defined the 5th Circuit's approach to the "equal terms" clause of the Religious Land Use and Institutionalized Persons Act. The court must determine:

whether the religious assembly or institution is treated as well as every other nonreligious assembly or institution that is “similarly situated” with respect to the stated purpose [of the regulation].

The court remanded the case for the district court to decide:

(1) whether Opulent Life is likely to succeed on its claims challenging the validity of the newly adopted religious facilities ban; (2) whether the harm Opulent Life will suffer absent a preliminary injunction outweighs the harm an injunction will cause Holly Springs; (3) the amount of actual damages Opulent Life suffered ... and (4)... whether Opulent Life should be awarded reasonable attorneys fees....

Suit Over Amish Building Code Compliance Settled

A settlement has been reached between the Swartzentruber Amish community and the Town of Morristown, New York over building code compliance.  In 2009, eleven Amish families filed suit in federal court challenging enforcement the town's requirements that they submit architect-stamped construction plans, install battery-powered smoke detectors, use hurricane tie-downs and  construct frost-proof foundations. The Amish said that these requirements violate their religious beliefs. (See prior posting.) The Watertown Daily Times reports that in a compromise the town has dropped building code violation charges.  The town will accept Amish cellar construction as meeting code requirements, while the Amish will have smoke detectors installed in their homes during inspections and will use an approved method to secure their roofs.  The parties agreed to dismiss the federal lawsuit and the court issued an order doing so on Sept. 21. [Thanks to Blog From the Capital for the lead.]

FFRF Sues Another Pennsylvania School District Over 10 Commandments Monument

The Freedom From Religion Foundation has announced that it filed suit in federal court yesterday against the Connellsville, Pennsylvania school district challenging the constitutionality of a Ten Commandments monument that has stood near the auditorium entrance of a now-junior high school building for over 50 years. When the monument was presented to the school by the Fraternal Order of Eagles, the school was a high school.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Connellsville Area School District, (WD PA, filed Sept. 27, 2012) alleges that originally school officials had agreed to move the monument to the grounds of a nearby church, but they changed their minds after community opposition to the decision. The monument is now covered with a wooden box.  Earlier this month, FFRF filed a similar lawsuit against another Pennsylvania school district. (See prior posting.)

Chabad Sues Northwestern University For Discrimination After University Ends Affiliation

According to Courthouse News Service, last week the Chabad House at Northwestern University filed a religious discrimination lawsuit against the University after the University informed Chabad that it was revoking its university affiliation. The complaint (full text) in Lubavitch-Chabad of Illinois, Inc. v. Northwestrn University, (ND IL, filed 9/21/ 2012) says that the University's action terminates Chabad Rabbi Dov Hillel Klein's university chaplaincy positions. Also the University seeks to bar Chabad from contracting with a food vendor to facilitate the sale of kosher food on campus and to bar Chabad from sponsoring the Birthright Israel trip for Northwestern students. The University also will ask a fraternity to drop Rabbi Klein as its adviser. According to the Daily Northwestern, the University's action was taken because Chabad serves alcohol at student events in violation of University policy. The complaint in the lawsuit alleges:

many other campus organizations including religious organizations, had committed the same acts for which Rabbi Klein stood falsely accused.  The University was aware of this, and chose only to disassociate with Chabad. Those actions constituted discriminatory and disparate treatment taken solely on the basis of Rabbi Klein’s ... affiliation with Chabad Chassidism.

[Thanks to Vos Iz Neias? for the lead.]

Man Behind Inflammatory Anti-Muslim Video Arrested For Probation Violations

ABC News and the Los Angeles Times report that yesterday federal probation officials in Los Angeles (CA) arrested Nakoula Basseley Nakoula, the man purportedly behind the video "Innocence of Muslims" that has sparked demonstrations around the world. (See prior posting.) Nakoula, under the terms of his 2010 probation for bank fraud, was not to use or own devices with access to the Internet without approval of his probation officer, and was not to enlist others access the Internet for him. Magistrate Judge Suzanne Segal ordered Nakoula to be held in custody, citing his lengthy pattern of deception. Prosecutors argued that he is a flight risk.

Egypt Charges U.S. Embassy Protester Under Blasphemy Law

As previously reported, two weeks ago crowds demonstrated and attacked the U.S. embassy in Egypt to protest the video Innocence of Muslims. Now, according to AP, on Tuesday Egyptian prosecutors referred to trial on charges of insulting "heavenly" religions Ahmed Mohammed Abdullah who was filmed tearing up an English copy of the Bible during the embassy protest. Abdullah is well-known for having created a new TV channel operated mainly women veiled from head to toe with only their eyes showing.  Egypt's blasphemy law covering heavenly religions is generally seen as applying to Islam, Christianity and Judaism, but in the past has been used mostly by critics of Islam.  Abdullah claims he has not violated the blasphemy law because he targeted the book of a specific group of Christians who have offended Islam.  Apparently Abdullah's son and a journalist who interviewed him were also charged under the blasphemy law.

German Court Says State Will Not Regard Those Who Stop Paying Church Taxes As Church Members

In Germany, Leipzig's Federal Administrative Court ruled yesterday that a person will not be considered by the state to be a member of the Catholic Church if he opts out of paying Church taxes. However how the Church deals internally with a person who does not pay Church taxes is up to religious authorities.  According to Deutsche Welle in an article and an op-ed, the ruling comes in a case filed in 2007 by a retired professor of church law who had insisted that he would no longer pay the church tax but would still remain a Catholic and continue praying and receiving Holy Communion.  At that time there was some disagreement between the Vatican and the German bishops over the definition of Church membership. However, last week, the German Catholic bishops issued a ruling that had been approved in advance by the Vatican that said those who opt out of the Church tax cannot participate in most aspects of the Catholic Church. (See prior posting.)

Today Was Annual "See You At The Pole" Events

As reported by Christian Post, today was the 22nd annual "See You At The Pole" student prayer event at schools around the country and abroad.  Alliance Defending Freedom announced that it stands ready to provide free defense for any students who have been prevented or discouraged by public school officials from participating in the event. ADF has also released a legal memo defending the constitutionality of student participation and promotion of the event.

Judge Sentences Defendant To Write Report on Hinduism

As reported by MLive, in Bay County, Michigan on Monday, 26-year old Delane D. Bell was up for sentencing on a charge of ethnic intimidation to which he plead guilty last March. The charge stemmed from an incident outside a bar in which Bell  shouted "jihad" and "Osama bin Laden" at two Hindu men, and then punched one of the men and hit the other’s car. At the time of the plea, Bay County Circuit Judge Joseph K. Sheeran ordered Bell to write a 10-page report on the greatest accomplishments of Muslims. Now, the judge sentenced Bell to 2 years probation, on the condition that he write another 10-page report, this time on Hinduism. The judge added that this report should show more originality than his last one did.

Challenge To Utah's Anti-Bigamy Law Is Not Moot

In Brown v. Herbert, (D UT, Aug. 17, 2012), a Utah federal district court denied a motion made by the county attorney of Utah County, Utah, to dismiss as moot a challenge to the state's Anti-Bigamy statute brought by members of an openly polygamous family (subjects of the television show Sister Wives). (See prior related posting.) County Attorney Jeffrey Buhman argued that his office has recently adopted a policy of not prosecuting under the statute unless there has been some other criminal conduct as well.  The court said however:

While it may be the case that Mr. Buhman believes that prosecution of Plaintiffs would be inappropriate in this circumstance, there is no reason to believe that such a determination is anything beyond an exercise of prosecutorial discretion that could be easily reversed in the future by a successor Utah County Attorney, or by Mr. Buhman himself, if he should change his mind.  As a result, Mr. Buhman’s adoption of the non-prosecution policy at issue in this matter is not sufficient to establish that future prosecution of  Plaintiffs is unlikely to recur.  

2nd Circuit Rules In Favor Of Church In Land Use Dispute

In Fortress Bible Church v. Feiner, (2d Cir., Sept 23, 2011), the U.S. 2nd Circuit Court of Appeals affirmed a New York federal district court's decision that the Town of Greenburgh, New York violated RLUIPA's "substantial burden" provisions, as well as the free exercise and equal protection provisions of the U.S. and New York constitutions, in denying an application by Fortress Bible Church to build a new facility to house the church and its school. (See prior posting.) The Court of Appeals first resolved the question of whether the Religious Land Use and Institutionalized Persons Act applies to the town's decision, which was made in the context of the New York State Environmental Quality Review Act. The court said:

in no sense do we believe that ordinary environmental review considerations are subject to RLUIPA. However, when a statutorily mandated environmental quality review process serves as a vehicle to resolve zoning and land use issues, the decision issued constitutes the imposition of a land use regulation as that term is defined in RLUIPA.

The court went on to hold:

A denial of a religious institution's building application is likely not a substantial burden if it leaves open the possibility of modification and resubmission.... However, if the town's stated willingness to consider another proposal is disingenuous, a conditional denial may rise to the level of a substantial burden...

We need not resolve here whether zoning variance decisions challenged under the Free Exercise Clause are subject to strict scrutiny or rational basis review because we conclude that on the record before us there was no rational basis for the Town's actions...

AU Calls For IRS To Investigate Colorado Christian Organization

Americans United announced last week that it has filed a complaint (full text of letter) with the Internal Revenue Service asking it to investigate the Ridgway, Colorado based Ridgway Christian Center for violating tax code limitations on non-profit organizations. The letter points to a magazine distributed by Ridgway (a project of Praise Him Ministries) to Colorado residents:

Please note the cover of the publication. It is dated Fall 2012 and contains a photo of a series of American flags. The headline reads, “Honor God! Love your country! VOTE REPUBLICAN!”

Inside the publication, Victoria Hearst, founder and president of the ministry, writes a long article challenging the right of the Internal Revenue Service to prohibit tax exempt organizations from endorsing or opposing candidates for public office. The articles relies heavily on material produced the Alliance Defending Freedom (formerly the Alliance Defense Fund), an Arizona-based organization that every year sponsors an event called “Pulpit Freedom Sunday,” during which pastors are urged to openly violate the law by endorsing or opposing candidates from the pulpit.

PBGC Takes Over B'nai B'rith's Pension Plan

On Sept. 11, the Pension Benefit Guaranty Corporation announced that it is stepping in to take over the pension plan of B'nai B'rith International, a Washington, DC-based Jewish advocacy organization. Without the takeover, B'nai B'rith would have been unable to continue to operate.  Under the takeover, PBGC will pay retirees their earned pensions up to the legal limit of PBGC coverage, $54,000 per year.  JTA reported yesterday that B’nai B’rith filed an application with the PBGC in 2011, informing the federal agency that B'nai B'rith could no linger fulfill its pension plan obligations. The application came just a month before B'nai B'rith's then volunteer president, Dennis Glick, resigned from his position after being indicted on federal tax fraud charges.

Cert. Petition Filed In Bald Knob Cross Challenge

A petition for certiorari to the United States Supreme Court (full text) was filed on Sept. 4 in Sherman v. State of Illinois. In the case, the U.S. 7th Circuit Court of Appeals held that activist and atheist Robert Sherman lacked taxpayer standing to challenge a $20,000 grant by the Illinois Department of Commerce and Economic Opportunity to Friends of the Cross for restoration of the Bald Knob Cross, an Illinois tourist attraction. Nor can he force Friends of the Cross to return the funds to the state. (See prior posting.) AP reported on the filing. [Thanks to Alliance Alert for the lead.]

Iowa Faces Another Contested Supreme Court Retention Election Over 2009 Same-Sex Marriage Decision

In Iowa, state Supreme Court justices are appointed by the governor, but stand in retention elections one year after their first appointment, and every eight years after that.  In 2010, voters opposed to the state Supreme Court's unanimous decision supporting same-sex marriage ousted 3 of the 7 justices who voted to invalidate the state's law that had barred recognition of same-sex marriages. (See prior posting.) In November, another of the Justices who voted for the decision is up for retention and, according to the Des Moines Register, competing rallies by Justice David Wiggins' opponents and supporters are being held around the state.  Iowans for Freedom, who want Wiggins out of office, began a 4-day, 17 city bus tour with a rally at the Iowa State Capitol yesterday.  Among the speakers were former Republican presidential candidate Rick Santorum and former Iowa gubernatorial candidate Bob Vander Plaats.  A spokesman for the group said: "This is nothing personal against Justice Wiggins, understand. He’s just number four in a line of seven who committed a grievance against the people."

Meanwhile a group of lawyers, elected officials and Democratic activists are shadowing the “No Wiggins” campaign, defending the merit selection process. The president-elect of the Iowa State Bar Association said: "We don’t want to return to the days where politics have been injected into our system, and remove the fair and impartial courts that we have, well-respected throughout this country."

Buddhist Stupa To Be Removed From National Park Land Because of Constitutional Concerns

AP reported yesterday that the National Park Service has decided to remove a stupa (Buddhist reliquary) that has been on the grounds of Petroglyph National Monument in New Mexico since 1990.  The decision comes after the group Public Employees for Environmental Responsibility asked the Park Service to review the constitutionality of keeping the 10-foot structure containing Buddhist relics on federal land.  The Department of Interior's solicitor general ruled that maintaining the stupa violates the Establishment Clause.  The stupa will be donated to the Buddhist community in Albuquerque.

Pakistani Girl Exonerated Of Blasphemy By Police; Case Referred To Juvenile Court

In Pakistan on Saturday, police told a court that their investigation in the widely followed blasphemy case against a Christian girl, Rimsha Masih, has shown that there is no evidence that the girl has committed blasphemy. According to the Khaleej Times, the charge sheet submitted by police to the court alleges that the prayer leader of a nearby mosque, Mohammed Khalid Chishti, added holy pages to a shopping bag that Masih had been carrying. Today, according to DAWN, the court ordered the investigation report to be submitted to a juvenile court after medical evidence showed that Masih is only 14 years old.  Masih was release on bond earlier and is in an undisclosed location for security purposes. (See prior posting.)

TRO Issued Against New Orleans Aggressive Solicitation Ordinance

For the second time this month (see prior posting), a federal lawsuit was filed challenging a provision in New Orleans "Aggressive Solicitation" ordinance that prohibits loitering or congregating on Bourbon Street in the French Quarter "for the purpose disseminating any social, political, or religious message between the hours of sunset and sunrise." This time the court entered a temporary restraining order barring enforcement of the law and setting a hearing for Oct. 1 on whether to issue a preliminary injunction. As reported by AP, the suit, filed last Thursday, was brought by the ACLU on behalf of Kelsey Nicole McCauley, a member of the Raven Ministries.

Recent Articles of Interest

From SSRN:

• Steven Douglas Smith, Religious Symbols and Secular Government, (San Diego Legal Studies Paper No. 12-096, Sept. 17, 2012).
• Niclas Berggren and Christian Bjornskov, Does Religiosity Promote Property Rights and the Rule of Law?, (ICER Working Paper No. 2/2012, April 2012).
• Allan Vestal, To Soften Their Obdurate Hearts: The Southern Baptist Convention and Marriage Equality, (Tulane Journal of Law and Sexuality, Vol. 21, p. 49, 2012).
• Mary Szto, Contract in My Soup: Chinese Contract Formation and Ritual Eating and Drunkenness,(September 19, 2012).
• Mauro Gatti, Autonomy of Religious Organisations in the European Convention of Human Rights and European Union Law, (Paper presented at the Conference ‘Fundamental Rights in Europe and China: Between Identities and Universalism’, Bologna, 28-29 May 2012).
• David H. Michels, Seeking God’s Will: The Experience of Information Seeking by Leaders of a Church in Transition, ((2012) 36 (1-2) Canadian Journal of Information and Library Science 16-27).
• Mark William Osler, A Biblical Value in the Constitution: Mercy, Clemency, Faith, and History, (University of St. Thomas Law Journal, 2013, Forthcoming).
• Jay Michaelson, Hating the Law for Christian Reasons: The Religious Roots of American Antinomianism, (September 22, 2012).
• John Hagan and Todd Haugh, Ethnic Cleansing as Euphemism, Metaphor, Criminology, and Law, (Forging a Convention for Crimes Against Humanity, ed. Leila Nadya Sadat, Cambridge University Press, 2011).

From SSRN-- Islamic Law:

• Cyra Akila Choudhury, Shari'ah as National Security Threat?, (Akron Law Review, Vol. 46, 2012).
• Ahmad A. Alkhameed, International Arbitration and Shari’a Law: Context, Scope, and Intersections, (28 Journal of International Arbitration, Issue 3, pp. 255–264, 2011).
• Brian J. Baker, Islamic Law and Refugees: Concept and Application, (September 17, 2012).
• Mitali Srivastava, Family Law and Gender Justice: A Statutory Analysis & Case Study, (April 10, 2012).
• Mohamed A. Arafa, Corruption and Bribery in Islamic Law: Are Islamic Ideals Being Met in Practice?, (18 Golden Gate Ann. Surv. Int'l & Comp. L. 171, Spring 2012).
• Anant Gupta, Shah Bano Case and Related Issues, (September 21, 2011).
• Lama Abu-Odeh, Of Wife and the Domestic Servant in the Arab World, (Georgetown Public Law Research Paper No. 12-135, 2012).

From SmartCILP:

• Ross Astoria, Why Do Citizens Litigate Over the Posting of the Ten Commandments? A Case Study from Tennessee [Includes photographs], 30 Quinnipiac Law Review. 691-725 (2012).
• Linda C. McClain, Constitutional and Religious Redemption: Assessing Jack Balkin's Call for a "Constitutional Project," 92 Boston University Law Review 1187-1211 (2012).

Recent Prisoner Free Exercise Cases

In Jean-Pierre v. Bureau of Prisons, (3d Cir., Sept. 18, 2012), the 3rd Circuit upheld the dismissal of a Rastafarian prisoner's complaint over his prior suspension from the Certified Religious Diet Program

In Ind v. Colorado Department of Corrections, 2012 U.S. Dist. LEXIS 130476  (D CO, Sept. 13, 2012), a Colorado federal district court rejected a magistrate Judge's recommendations (2012 U.S. Dist. LEXIS 130473, July 16, 2012) and refused to dismiss on either mootness or 11th Amendment grounds RLUIPA and free exercise claims by an inmate who is a follower of "Christian Separatism." Plaintiff complains about limitations on correspondence, books, magazines, and taking communion, as well as his classification as a member of a security threat group because of his religion.

In Gibson v. Pacheco, 2012 U.S. Dist. LEXIS 130477 (D CO, Sept. 13, 2012), a Colorado federal district court adopted two recommendations of a magistrate judge (2012 U.S. Dist. LEXIS 130479, March 14, 2012 and 2012 U.S. Dist. LEXIS 132409, April 16, 2012) and rejected various constitutional and RLUIPA challenges to rules and procedures for terminating an inmate's participation in the kosher diet program, but allowed him to move ahead with his 1st Amendment claim that authorities did not properly comply with these rules in removing him from the program.

In McKenzie v. Ellis, 2012 U.S. Dist. LEXIS 130973 (SD CA, Sept. 12, 2012), a California federal district court adopted in part and rejected in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 130974, May 15, 2012), and dismissed complaints by a Rastafarian inmate that he was denied a special religious diet during two time periods.

In Anderson v. Bilbo, 2012 U.S. Dist. LEXIS 130941 (WD OK, Sept. 7, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 130943, Aug. 15, 2012), and dismissed complaints by an inmate that he was served pork a few times in violation of his non-pork diet which he maintained for religious reasons (which he never documented).

Kushner v. Keller, 2012 U.S. Dist. LEXIS 132292 (ED NC, Sept. 17, 2012), is a damage action by a former state inmate against authorities for failing to provide him with kosher meals at one facility at which he was incarcerated. A North Carolina federal district court dismissed plaintiff's RFRA and RLUIPA claims, and his 1st Amendment claims against several defendants on qualified immunity grounds. The court found that factual issues remained for trial as to his remaining free exercise claims.

In Pokrzywinski v. Davenport, 2012 U.S. Dist. LEXIS 132118 (ND AL, Sept. 17, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 132117, Aug. 20, 2012) and rejected a Native American inmate's complaint that his rights were violated when the warden extinguished a sacred fire during a Native American sweat lodge ceremony because the fire had become too large. Inmates (but without plaintiff's participation) immediately rebuilt a smaller fire.

In Turner-Bey v. Maynard, 2012 U.S. Dist. LEXIS 133862 (D MD, Sept. 18, 2012), a Maryland federal district court rejected challenges by an inmate who is a member of the Moorish Science Temple of America to the Maryland prison system's religious diet policy.  He objected that the only diet available to him that meets the requirements of Islamic law is a lacto-ovo vegetarian diet.

In Wilson v. Texas Department of Criminal Justice, 2012 U.S. Dist. LEXIS 132930 (ED TX, Sept. 18, 2012), a Texas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 132932, Aug. 16, 2012) and dismissed complaints by a blind Native American inmate that he was unable to participate in religious programming when he was temporarily transferred to a unit that had special programs for blind prisoners, but did not have Native American religious programming.

In Boyd v. Carney, 2012 U.S. Dist. LEXIS 133387 (WD WA, Aug. 1, 2012), a Washington federal magistrate judge recommended dismissing a inmate's complaint that his rights were violated when defendants changed his mandatory Halal meat diet to a metabolic diet.

Illinois Appeals Court Issues Narrow Injunction Protecting Pharmacists' Conscience Rights

In Morr-Fitz, Inc. v. Quinn, (IL App., Sept. 20, 2012), an Illinois appellate court narrowed the scope of an injunction that had been issued by a trial court preventing enforcement of an Illinois State Pharmacy Board rule requiring pharmacies to dispense Plan B and other forms of emergency contraception. (See prior posting.) Avoiding the constitutional issues, the appellate court held that Illinois' Health Care Right of Conscience Act applies to pharmacists and pharmacies and protects plaintiffs' decisions not to dispense emergency contraceptives due to their conscience beliefs. However the trial court's injunction barring enforcement of the rule even against non-objecting pharmacies was held to be overly broad. The appellate court concluded: "We modify the injunction so it enjoins defendants from enforcing the Current Rule against these plaintiffs, who have conscience-based objections to the Current Rule." The Chicago Tribune reports on the decision.

Juvenile Court's Vaccination Order Did Not Violate Mother's Free Exercise Rights

In Schenker v. County of Tuscarawas, (ND OH, Sept. 14, 2012), an Ohio federal district court rejected a mother's claim that a state juvenile court infringed her free exercise rights by requiring her children to be vaccinated in violation of her religious beliefs. The state court's order came as part of proceedings finding the children neglected and dependent and placing them in the custody of child welfare authorities.

German Bishops Decree Consequences For Catholics Who Opt Out of Church Taxes

Germany's Conference of Catholic Bishops on Thursday issued a Decree and Pastoral letter providing that those who opt out of Germany's church tax will be ineligible to participate in a wide variety of Church sacraments and activities. (Press release and links to full text of documents in German.) Germans who register with the government as Catholics, Protestants or Jews are assessed an additional  8% to 9% of their income tax bill to support their religious organizations. However Germans can avoid this additional tax by filing a declaration with their local tax office stating that they are leaving their faith community. Growing numbers are filing this opt out. This threatens the 5 billion Euros ($6.5 billion US) realized by the Catholic Church from the tax. In their latest decree (which was approved in advance by the Vatican), the German bishops say that "one cannot partly leave the Church." According to Reuters, the decree provides that:

Catholics who leave can no longer receive sacraments, except for a special blessing before death, the decree states.

They cannot work in the church or its institutions, such as schools and hospitals, or be active in church-sponsored associations such as charity groups or choirs.

They cannot be godparents for Catholic children and must get a bishop's permission to marry a Catholic in a church ceremony. "If the person who left the Church shows no sign of repentance before death, a religious burial can be refused.

[Thanks to Scott Mange for the lead.] 

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."