Court Rejects Father's Establishment Clause Challenge To Divorce Decree Provision On Religious Education of Children

In Roberts v. Roberts, (TX App., Dec. 19, 2012), a Texas appeals court rejected a father's Establishment Clause challenge to a provision in a divorce decree under which his former wife was given the right to pick up the children for religious classes on Sundays on which the father otherwise had possession of the children.  The court said in part:

Just as  the  court has discretion to mold the decree to accommodate activities such as soccer games and music lessons if it finds them in the child’s best interest, it may accommodate a parent’s desire for the children’s religious education, provided that it does not favor one parent’s religion over another or over a preference for no religion.  Martin has not directed us to, nor  have we located, any evidence in the record that the court’s decreed visitation schedule, accommodating, inter alia, the children’s current religious education, in any way  favors Margaret’s religion.

Two More Decisions In Challenges To ACA Mandate; 10th Circuit and Missouri District Court Have Divergent Views

In Hobby Lobby Stores, Inc. v. Sebelius, (10th Cir., Dec. 20, 2012), the U.S. 10th Circuit Court of Appeals refused to grant an injunction pending resolution of an appeal in a challenge by two closely-held  for-profit corporations and their Christian owners to the contraceptive coverage mandate under the Affordable Care Act.  The court concluded that plaintiffs had not demonstrated a substantial likelihood of success on the merits because it was unlikely that the mandate imposed a substantial burden on plaintiffs' exercise of religion:

other cases enforcing RFRA have done so to protect a plaintiff’s own participation in (or abstention from) a specific practice required (or condemned) by his religion.  We do not think there is a substantial likelihood that this court will extend the reach of RFRA to encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship.

LifeNews reports on the decision. (See prior related posting.) In a press release, Becket Fund indicated that plaintiffs will now seek relief from the U.S. Supreme Court. UPDATE: Here is the petition to the Supreme Court for an injunction pending appellate review.

However, in American Pulverizer Co. v. U.S. Department of Health and Human Services, (WD MO, Dec. 20, 2012), a Missouri federal district court granted a preliminary injunction against enforcement of the contraceptive coverage mandate in a challenge filed by a group of metal recycling businesses owned by Evangelical Christians Paul and Henry Griesediek. (See prior posting.) The court held: "Plaintiffs have raised questions concerning their likelihood of success on the merits that are so serious and difficult as to call for more deliberate investigation." In reaching that conclusion, the court said in part:

Plaintiffs must either pay for a health plan that includes drugs and services to which they religiously object or incur fines.  Accordingly, the Court determines that there is a substantial likelihood that Plaintiffs will able to prove, on the merits, that the ACA substantially burdens Plaintiffs’ exercise of religion.

The Court notes that Defendants argue that Plaintiffs cannot show that the ACA substantially burdens any exercise of religion as the Griesedieck Companies are secular entities and, thus, cannot “exercise religion” under the RFRA. ... [T]here are many entities under which an individual can run a business, i.e. a corporation, partnership, LLC, closely-held subchapter-s corporation, or sole proprietorship.  Does an individual’s choice to run his business as one of these entities strip that individual of his right to exercise his religious beliefs?....

National Review reports on the decision.

TRO Vindicates Woman's Display of Offensive Holiday Decorations

The Louisiana ACLU announced yesterday that it has obtained a temporary restraining order on behalf of a Denham Springs (LA) woman in an unusual dispute over holiday light displays. The complaint (full text) in Childs v. City of Denham Springs, (MD LA, filed 12/20/2012), recounts that as part of an ongoing disagreement with her neighbors, plaintiff Sarah Childs installed on her roof "a string of holiday lights in the shape of a human hand with an extended middle finger."  After neighbors complained, police told Childs to remove the lights, and initially she did. Subsequently she put the display back up, this time featuring two hands with extended middle fingers. Police then issued Childs various summonses for other items about which her neighbors complained such as obstructing traffic, disturbing the peace and assault, and eventually police ordered Childs to remove the second display.  After doing so, she sued claiming free speech, due process and other violations. (Links to filings in the case.) AP reports on the issuance of the TRO.

Nominal-Rent Lease To Scouts of City Property Does Not Violate California No-Aid Bar, or Establishment Clause

In Barnes-Wallace v. City of San Diego, (9th Cir., Dec. 20, 2012), the U.S. 9th Circuit Court of Appeals rejected state and federal constitutional challenges to the city's leases of property for nominal or no rent to the Boy Scouts. The Boy Scouts bar youths or adults who are atheists, agnostics,or homosexuals from being members or volunteers.  One set of plaintiffs in the case is a lesbian couple, and the other plaintiffs are agnostics, so they cannot be Boy Scout volunteers.  As parents they refuse to allow their sons to become Boy Scout members because of these exclusionary policies, and refuse to allow their sons to use the property as members of the public so long as the Boy Scouts administer the properties.  Reversing the District Court, the 9th Circuit held that the leases do not violate the "No Aid" Clause of the California Constitution since any benefit to the Scout's religious purposes is merely incidental. (See prior related posting.) Nor do the leases violate the California "No Preference" Clause or the federal Establishment Clause. A reasonable observer "could not conclude that the City was engaged in religious indoctrination, or was defining aid recipients by reference to religion."  Finally the court rejected equal protection, statutory and contract claims. (See prior related posting.)

Judge Kleinfeld, concurring, would also have denied standing to plaintiffs, saying: "Revulsion for a group so intense that one cannot bear to be on property they manage cannot, in a tolerant society, be deemed harm sufficiently concrete as to confer standing to sue."  The Los Angeles Times reports on the decision.

In Tunisia, Advocacy Group Sues Imam Over Anti-Jewish Remarks In Sermon

The Times of Israel reported yesterday that in Tunisia, the Tunisian Association to Support Minorities has filed a lawsuit against a prominent imam for anti-Jewish remarks he made in a televised sermon [excerpts] delivered at the Khatib mosque near Tunis last month. The suit alleges that Sheikh Ahmad Al-Suhayli violated Tunisia’s 2011 Decree 115 [background] which prohibits "calls to hatred between races and religions, and the population" when he told listeners: "God wants to destroy this sprinkling of Jews… and is for sterilizing the wombs of Jewish women."

Canada's Supreme Court, in Split Decision, Sets Out Balancing Test On Right of Witness To Wear Niqab

The Supreme Court of Canada today, in a widely watched case, handed down its decision on whether a Muslim woman who for religious reasons wears a niqab that covers her face can be required to remove it while testifying in court. The issue arose at a preliminary inquiry involving criminal charges against the woman's uncle and cousin who she accused of repeatedly sexually assaulting her when whe was a young girl.  (See prior posting.) In R. v. N.S., (Sup. Ct. Canada, Dec. 20, 2012), Chief Justice McLachlin, writing for 4 of the 7 Supreme Court justices set out a balancing test, and held that the case should be remitted to the judge conducting the preliminary inquiry to apply the test:

Two sets of Charter rights are potentially engaged — the witness’s freedom of religion and the accused’s fair trial rights, including the right to make full answer and defence.  An extreme approach that would always require the witness to remove her niqab while testifying, or one that would never do so, is untenable.  The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court.  A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.....

Justice LeBel joined by Justice Rothstein held that they would impose a "clear rule" that a niqab cannot be worn at any stage of the criminal trial:

The Charter protects freedom of religion ....  But fundamental too are the rights of the accused to a fair trial, to make full answer and defence to the charges brought against him, to benefit from the constitutional presumption of innocence and to avert wrongful convictions.  Since cross-examination is a necessary tool for the exercise of the right to make full answer and defence, the consequences of restrictions on that right weigh more heavily on the accused, and the balancing process must work in his or her favour.

Justice Abella, on the other hand, would allow the witness to wear her niqab while testifying:

Since not being able to see a witness’s whole face is only a partial interference with what is, in any event, only one part of an imprecise measuring tool of credibility, there is no reason to demand full “demeanour access” where religious belief prevents it..... Defence counsel still has the opportunity to rigorously cross-examine the witness.

A witness who is not permitted to wear her niqab while testifying is prevented from being able to act in accordance with her religious beliefs.  This has the effect of forcing her to choose between her religious beliefs and her ability to participate in the justice system.  As a result, complainants ... may choose not to bring charges for crimes they allege have been committed against them, or ... may resist being a witness in someone else’s trial.  Where the witness is the accused, she will be unable to give evidence in her own defence.... [S]exual assault complainants, whose evidence will inevitably be contested, will be forced to choose between laying a complaint and wearing a niqab, which may be no meaningful choice at all.

 The Toronto Globe and Mail reports on the decision, as does Constitutional Law Prof Blog. CBC News reviews several other controversies in Canada in recent years involving the right to wear a niqab. [Thanks to Ruthann Robson for the lead.]

Church Deacon Among Others Charged In Asylum Fraud Schemes

The U.S. Attorney's Office for the Southern District of New York announced Tuesday the unsealing of indictments (full text of charging documents) charging 26 individuals in overlapping immigration fraud schemes involving fabricated claims of persecution asserted by Chinese aliens seeking asylum.  Those charged were lawyers and paralegals in ten different law firms in the Chinatown area of Manhattan and Queens, as well as four translators and a church employee, all of whom were involved in the scheme to prepare false applications, coach clients on how to lie in their immigration interviews and mis-translate their answers when necessary to support their claims.  According to the U.S. Attorney's Office:

the law firms made up stories of persecution that often followed one of three fact patterns: (a) forced abortions performed pursuant to China’s family planning policy; (b) persecution based on the client’s belief in Christianity; or (c) political or ideological persecution, typically for membership in China’s Democratic Party or against followers of Falun Gong.

One of those indicted was Liying Lin (charging document) who claimed to be a deacon at the Full Gospel Church in Flushing, NY. It was charged that at bi-weekly sessions she provided training in the basic tenets of Christianity to asylum applicants who were falsely claiming religious persecution. In exchange for cash contributions to the Church, or to Liying Lin personally, she would coach clients on what questions regarding religion would be asked during the interview, and on how to answer them. She would sometimes also provide certificates of church attendance or baptism. Sometimes she served as the translator during the asylum interview and signaled applicants when they gave a wrong answer, or mistranslated their statements to make the answer consistent with their persecution and religious belief claims. The New York Times reports on the indictments.

Man Pleads Guilty In Ohio Mosque Arson Attack

In Toledo, Ohio yesterday, 52-year old Randolph Linn plead guilty in federal district court to one count each of intentionally defacing, damaging, and destroying religious property; using a fire to commit a felony; and using and carrying a firearm to commit a crime of violence in an attack on the Islamic Center of Greater Toledo. According to the Toledo Blade:

Linn admitted he set fire to the rug in the prayer room at the mosque on Sept. 30 after walking through the building with a gun to check for people in each room. He said he was motivated to drive the nearly two hours from his Indiana home to the Perrysburg mosque “to get some payback” for Americans who had been killed.

Under a binding plea agreement Linn will be sentenced to 20 years in prison and be required to pay restitution to the mosque.  The Islamic Center suffered extensive water and smoke damage as a result of the attack.

British Court, Citing Precedent, Says Scientology Chapel Cannot Be Registered As Place of Worship

A British trial court in Hodkin v. Registrar General of Births, Deaths and Marriages, (High Ct., Dec. 19, 2012), upheld the refusal by the Registrar General of Births, Deaths and Marriages in England and Wales to register a Church of Scientology chapel as "a place of meeting for religious worship." (Court summary of decision.) Without such registration, marriages cannot be solemnized in the chapel to the dismay of plaintiff, a 23-year old Scientologist who wants to marry her fiance in Scientology's London Church Chapel.  The High Court held that it was bound by a 1970 Court of Appeal decision holding that Scientology services did not involve acts of worship, so their chapels did not qualify under the Places of Worship Registration Act 1855.  (See prior related posting.) The Telegraph reports on the decision.

LDS Church Sued Along With Scouts In Suit Over Abuse By Scoutmaster

The Legal Intelligencer reports that last week, in Common Pleas Court in Philadelphia (PA), a 28-year old man filed suit against the Boy Scouts of America and the Church of Jesus Christ of Latter Day Saints for damages because of sexual abuse plaintiff suffered at the hands of scout leader Vance Hein in 1998- 1999. The suit, filed Dec. 12, alleges that the LDS Church "jointly operated and/or controlled" the troop along with the Boy Scouts. Hein, who is currently in prison, was also a church youth leader.  Plaintiff's lawyers plan to depose LDS Church leaders to determine their role in keeping Hein on as a scout leader.

Corporate Entities Fail To Show Religious Identity To Support Credit Discrimination Claim

In New Louisiana Holdings, LLC v. Arrowsmith, (ND IL, Dec. 4, 2012), an Illinois federal district court dismissed claims under 42 USC Sec. 1981 and the Equal Credit Opportunity Act of anti-Semitic discrimination in the administration of loan agreements.  At issue were loans taken out to acquire a network of nursing homes. Plaintiffs in the case are the LLCs (referred to by the court as corporate entities) that borrowed the funds as well as Harris Schwartzberg who, with his father, acquired the nursing homes through the LLCs.  In the portion of the complaint at issue, the LLCs (the "Corporate Plaintiffs') alleged that GE Capital's agent, Richard Arrowsmith, discriminated against them on the basis of their Jewish racial and religious identities in declaring a series of loan defaults and taking other injurious actions under the loan agreements. The business entities claim to have a Jewish identity because the Schwartzbergs are Jewish. The court held, however that the allegations in the complaint:

fail to provide the Court with a factual basis for finding that Corporate Plaintiffs have acquired a racial or religious identity. Plaintiffs do not allege any facts regarding the ownership structures of Corporate Plaintiffs, whether Corporate Plaintiffs have been certified as having minority identities by a governmental institution, or whether Corporate Plaintiffs' purposes are to serve or advance Jewish interests. For instance, the complaint does not identify whether the Schwartzbergs are the sole shareholders or majority shareholders of Corporate Plaintiffs.

Future of Capitalism reports on the decision.

DC Circuit Holds Challenges By Religious Colleges To Contraceptive Coverage Mandate In Abeyance

As previously reported, earlier this year the federal district court for the District of Columbia dismissed for lack of standing and ripeness challenges by Wheaton College and Belmont Abbey College to the mandate issued under the Affordable Care Act requiring group health insurance policies to cover contraceptive services for women. Because the Department of Health and Human Services had announced a one-year enforcement safe harbor for non-profit groups whose religious beliefs are violated by the mandate, the court concluded that the schools do not face imminent enforcement action. The colleges appealed, in part arguing that enforcement of the mandate is still sufficiently imminent to make the cases appropriate for decision. (Appellants' Brief.) Now in an order captioned Wheaton College v. Sebelius, (DC Cir., Dec. 18, 2012) which covers both cases, the D.C. Circuit decided to hold the cases in abeyance and require the government to file status reports with the court every 60 days, saying that the government:

represented to the court that it would never enforce 45 C.F.R. § 147.130(a)(1)(iv) in its current form against the appellants or those similarly situated as regards contraceptive services....  There will, the government said, be a different rule for entities like the appellants, ... and we take that as a binding commitment.  The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013.... We take the government at its word and will hold it to it....  Based expressly upon the understanding that the government will not deviate from its considered representations to this court, we conclude that the cases are not fit for review at this time....

Becket Fund, in a press release announcing the order, called it a victory for all religious non-profits because the government has been forced to promise that it will never enforce the mandate in its current form against non-profit religious employers.

Accused Ft. Hood Shooter May Get To Wear Beard At Trial

The Austin (TX) Statesman yesterday reported that now that a new military judge has been appointed to preside over the trial of accused Fort Hood shooter Maj. Nidal Hasan (see prior posting),  Hasan may be allowed to wear his beard that he has grown for religious reasons.  In an exchange at a hearing yesterday, while not finally ruling on the issue, newly-appointed military judge Col. Tara Osborn told Hasan: "I’m not going to hold (the beard) against you, but people on the (jury) panel may. Do you understand?" Col. Osborn also asked defense attorneys to draw up possible jury instructions to be used if Hasan wears a beard during his trial.

Hawaii Appeals Court Says Archaeological Survey Was Required Before Disinterments

In Hall v. Department of Land and Natural Resources, (HI App., Dec. 14, 2012), the Hawaii Intermediate Court of Appeals held that an Archaeological Inventory Survey under Hawaii's historic preservation law should have been conducted by the State Historic Preservation Commission before the state permitted the Kawaiahao Church in 2010 to disinter 69 sets of Native Hawaiian human remains while constructing a new Multipurpose Center. Plaintiff in the case, a native Hawaiian, was concerned that family members were buried in unmarked graves on the church site.  Subsequently, according to Hawaii News Now last September, another 579 more recent remains were found on the site.  Honolulu Civil Beat speculates that last week's appeals court decision may require re-interment in original burial sites of the remains of the over-600 persons that were dug up and are being stored on church property.

In Split Decision, Montana High Court Rejects Broad Challenge To Unequal Treatment Of Same-Sex Couples

In a 4-3 decision in Donaldson v. Montana, (MT Sup. Ct., Dec. 17, 2012), the Montana Supreme Court rejected a suit by couples in a committed same-sex relationship challenging their inability under Montana law to obtain the same protections and benefits available to heterosexual couples who can marry. The majority said in part:

In  the  present  case ... Plaintiffs  do  not  seek  a declaration that any particular statute is unconstitutional or that its implementation should be enjoined.  Rather, Plaintiffs seek a general declaration of their rights and seek orders enjoining the State to provide them a “legal status and statutory structure” that protects their rights.... Broadly  determining  the  constitutionality  of  a “statutory  scheme”  that  may,  according  to  Plaintiffs,  involve  hundreds  of  separate statutes, is contrary to established jurisprudence.

The majority held that plaintiffs could file an amended complaint more narrowly challenging specific laws.

Justice Nelson filed a strong 108-page dissent, saying in part:

The problem ... is that this Court has chosen to punt.  And in simply kicking  the  can  down  the  road,  the  Court  has  denied  Plaintiffs  the  dignity,  respect, fairness, justice, and equality to which they are entitled—foremost as human beings, and legally under Montana’s Constitution.... Sexual orientation is a big deal to those who demand that their personal religious beliefs, their Bible’s  abhorrence,  and their partisan ideology  concerning homosexuality must apply to everyone else, across the board, no exceptions.  But future generations—indeed, most young people today—will not fear, much less honor, the sexual-orientation taboo.... [T]he taboo will die because the scare tactics, propaganda, and misinformation of those who would hang on to the maledictions and stereotypes have proven to be so patently false, malicious, and absurd.  Most decent people  just hate  being  lied  to.

As part of his dissent, Justice Nelson concluded that Montana's "Marriage Amendment,"-- the provision in the state constitution barring the recognition of same-sex marriage-- is invalid:

Montana’s  Marriage  Amendment  is  an  unconstitutional  attempt  to  enforce  a sectarian belief (held by some) through Montana’s secular law.... Indeed, the Marriage Amendment is undisputedly grounded in religious doctrine.  That much is apparent not only from the federal district court’s findings, but particularly from the fulminations of numerous religious organizations in the present case, led by the Montana  Catholic  Conference,  against  the  prospect  that  gay,  lesbian,  and  bisexual Montanans  might  enjoy  some  measure  of  legal  protection  for  their  relationships.   If homosexuality and same-sex relationships were not a religious issue, it is highly doubtful that any of these amici would be so actively involved in this case.

Justices Cotter and Wheat filed a brief separate opinion concurring with most of Justice Nelson's dissent, but refusing to join the portion of the dissent dealing with the Marriage Amendment because plaintiffs did not challenge that amendment. They also disagreed with certain other language in Justice Nelson's opinion.

The Montana Supreme Court also published a Synopsis of the Case.  AP reports on the decision. [Thanks to Alliance Alert for the lead.]

Pennsylvania Settles Suit By Rabbi Challenging Funeral Director Law

AP reports  that the Pennsylvania Board of Funeral Directors has settled a federal lawsuit filed against it and other state officials by a Pittsburgh rabbi challenging the Board's requirement to use a licensed funeral director even when a funeral is supervised by a religious authority and there is no embalming or fee-for-service. (See prior posting.) Under the settlement agreement filed with the court yesterday, the state will not apply the Funeral Director Law to clergy and others carrying out their religious functions and beliefs, so long as the person does not advertise as a funeral director, engage commercially in the funeral business or perform embalming.

University's Firing Of HR-VP Over Remarks About Gays Is Upheld By 6th Circuit

In Dixon v. University of Toledo, (6th Cir., Dec. 17, 2012), the U.S. 6th Circuit Court of Appeals held that the University of Toledo-- part of the state University system in Ohio-- did not violate the 1st Amendment free expression rights of its Associate Vice President for Human Resources when it terminated her because of an op-ed column she wrote expressing her views about homosexuality.  Responding to an editorial in the Toledo Free Press that implicitly compared the gay rights movement to the civil-rights movement, UT Associate VP Crystal Dixon, expressing her views as a Christian, African-American woman, argued that homosexuality is not an immutable characteristic.  She was fired because the views she expressed contradicted University policies, procedures and the core values of its strategic plan. (See prior posting.) The 6th Circuit held that a policy-making official "who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing" is not engaging in speech that is protected by the 1st Amendment.  According to the court, Dixon's op-ed implicitly suggests that LGBT employees and students are not entitled to civil rights protections.  AP reports on the decision. See prior related posting.) [Thanks to Alliance Alert for the lead.]

Volunteer Barred From Working With Diocese Youth Sues For Defamation

The Fort Worth Star-Telegram reports on a defamation lawsuit filed in state court last week against the Roman Catholic Diocese of Fort Worth and various Diocese officials by Joseph Jordan who was barred from serving as a volunteer with children or young people in any Diocese parish or school.  The complaint (full text) in Jordan v. Roman Catholic Diocese of Fort Worth, (TX Dist. Ct., filed 12/10/2012), alleges that Jordan and his wife have worked with youth in Catholic activities for over 20 years.  Jordan was also active with the Knights of Columbus. In July 2012, Jordan was summoned to the office of the Diocese Vicar General and read him a letter accusing him of "boundary violations" involving youth and young adults in the last few weeks. He was summarily barred from further serving as a volunteer, and the accusatory letter and an e-mail memorandum were published and circulated widely throughout the Diocese. The complaint alleges:

The language in these letters and emails individually and in combination created a false  and defamatory meaning or impression, either by omitting material facts or misleadingly juxtaposing events.  They were intended to  distort the  reader's  perception and they created  a substantially false  impression of Plaintiff....  Clearly,  an  ordinary reader would interpret the defamatory  communications ... as accusations of Plaintiff being a child molester and/or pedophile and/or sexual  abuser,  particularly when  considered  along  with  the  circumstance  of the  Fort  Worth Diocese being the subject of numerous lawsuits and enormous publicity arising from allegations of sexual abuse by Catholic priests and cover-ups by the leaders of the Diocese.... 

Moorish Science Adherent Arrested After Claiming Change of Identity

Yesterday's Tampa Bay Times reports on the jailing in late November in Pasco County Florida of Shanita Marie Burden on charges of driving with a counterfeit car tag, driving without a Florida license (her South Carolina license was suspended), and giving a false name to police. Burden insists she is Zuri Akila Betiti Matawala Zurj-Bey, a "grand sheikess" in the Moorish Temple of Science of the World. She insists that black people are not subject to the United States government, but instead are Moorish. In September, she was stopped when she was found driving a car with license tags reading : "Moorish American Republic 070117-004." She claimed that a piece of paper with a fuzzy photo from the Moorish Divine National Movement of the World issued to a Zuri Akila Betiti Matawala Zurj-Bey was her drivers' license. The woman claims she was born of a religious conversion last year and that she declared her former self, Shanita Burden, dead. She then made herself the personal representative for Burden's estate and filed court papers declaring this. At a Nov. 19 arraignment on the traffic charges, Bey, identified herself only as "flesh and blood."  She told Circuit Judge Susan Gardner that she was appearing as the personal representative of Burden, but the court ruled that since she wan not an attorney, she could not do so.  The court then issued a warrant against Burden for failing to appear in court. She was arrested eight days later when she attempted to file papers in the clerk of court's office ordering Judge Susan Gardner not to issue any more unlawful warrants against Burden.

Recent Articles of Interest

From SSRN:

• Mark D. Rosen, The Educational Autonomy of Perfectionist Religious Groups in a Liberal State, (1 Journal of Law, Religion & State 16, 2012).
• Thomas G. Field, Crimes Involving Intangible Property, (December 11, 2012).
• Andrew M. Koppelman, The Story of Welsh v. United States: Elliott Welsh's Two Religious Tests, (Richard Garnett and Andrew Koppelman, eds., First Amendment Stories, Foundation Press, 2011).
• Andrew M. Koppelman, Defending American Religious Neutrality, (Richard Garnett and Andrew Koppelman, eds., First Amendment Stories, Foundation Press, October 2011).
• Chuck Henson, Title VII Works – That's Why We Don't Like It, (2 University of Miami Race & Social Justice Law Review 41, 2012).
• Peter Nicolas and Mike Strong, The Geography of Love: Same-Sex Marriage & Relationship Recognition in America (The Story in Maps) Third Edition, (December 12, 2012).
• Susannah William Pollvogt, Forgetting Romer, (Stanford Law Review Online, 2012).
• Andrew Kim, 'Standing' in the Way of Equality? The Myth of Proponent Standing and the Jurisdictional Error in Perry v. Brown, (American University Law Review, Vol. 61, No. 6, 2012).

From SmartCILP and elsewhere:

• Elizabeth Sepper, Taking Conscience Seriously, 98 Virginia Law Review 1501-1575 (2012).
• Jacob Turner, Towards A Synthesis Between Islamic and Western Jus in Bello, 21 Journal of Transnational Law & Policy 165-206 (2011-2012).
• Church & State: Blurring the Lines, Wisconsin Lawyer, Dec. 2012.
• Steven H. Sholk, A Guide To Election Year Activities of Section 501(c)(3) Organizations (2012 edition), PLI Course Handbook, Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings, Nov. 2012.

Utah's New Attorney General Outlines His Policies On Polygamy Prosecutions

According to yesterday's Salt Lake Tribune, Utah's newly-elected attorney general, John Swallow says he will continue the policy of his predecessor Mark Shurtleff and will not bring criminal charges against consenting adults in plural marriages if they have not violated any law other than the state's polygamy ban. It is estimated that 38,000 people live in polygamous communities in Utah. Swallow said that he however will "do everything we can to uncover any type of abusive practice going on in any community." He will continue to defend the constitutionality of Utah's bigamy statute in an ongoing challenge to it by members of an openly polygamous family (subjects of the television show Sister Wives).  (See prior posting.) Swallow will also seek an end to the drawn out litigation seeking to reform the United Effort Plan Trust that holds the property of the polygamous FLDS Church. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Schreane v. Seana, (3d Cir., Dec. 13, 2012), the 3rd Circuit upheld the dismissal of a claim by an inmate that his 1st Amendment free exercise rights were violated when his religious oils were lost, misplaced, or
stolen during his confinement in the Special Handling Unit.

In Rentz v. Borem, 2012 U.S. Dist. LEXIS 175729 (SD CA, Dec. 11, 2012), a California federal district court permitted an inmate to proceed with his 1st Amendment free exercise claim that a correctional officer confiscated his prayer oil.

In  Adeyemi v. Murphy, 2012 U.S. Dist. LEXIS 175081 (D CT, Dec. 11, 2012), a Connecticut federal district court held that an inmate's claims that his religious pamphlets and newspapers, along with other specified documents, were confiscated did not allege a violation of his free exercise of RLUIPA rights.

In Mitchell v. New York State Department of Correctional Services, 2012 U.S. Dist. LEXIS 176209 (WD NY, Dec. 12, 2012), a New York federal district court dismissed claims by a Nation of Islam inmate that the Department of Corrections failed to accommodate his religious diet, that he was denied two Eid festival meals, and that inmates are are allowed to attend services of a religion in which they are not registered only three times per year.

In Deaton v. Arkansas Department of Corrections, 2012 U.S. Dist. LEXIS 174598 (ED AR, Dec. 10, 2012), an Arkansas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 174602, Oct. 15, 2012) and dismissed claims by an inmate who refused to cut his hair for religious reasons. Plaintiff contended that the Department of Corrections' grooming policy violates his rights under the free exercise clause and RLUIPA.

In Lomax v. Straughn, 2012 U.S. Dist. LEXIS 175910 (ED AR, Dec. 12, 2012), an Arkansas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 175924, Oct. 16, 2012) and dismissed an inmate's claim that his free exercise rights were violated when, while he was being held for 3 days on behavior control, he had no access to religious items.

Claim Against Archdiocese By Bookkeeper Who Exposed Abusive Priest's Presence Is Dismissed On 1st Amendment Grounds

In Weiter v. Kurtz, (KY App., Dec. 14, 2012), the Court of Appeals of Kentucky dismissed a wrongful discharge claim against the Archdiocese of Louisville and other defendants by Margie Weiter, a former bookkeeper-receptionist who was fired from her position at a Louisville parish after she insisted on complaining to her supervisor and Archdiocese personnel that James Schook, a priest accused of child molestation, was being allowed to live at the parish. She also alerted parents of this fact. Additionally, the court dismissed a claim for outrage filed by Weiter and her husband (who as a child was a victim of clergy sexual abuse).  The court said in part:

Although Margie is a secular employee, her wrongful termination claim necessarily depends on matters of church governance and church administration and is therefore barred by the First Amendment.  The root of Margie’s wrongful termination claim is her disagreement with church policy.  She claims that the Archdiocese eliminated her position in retaliation for speaking out against decisions made by the Archdiocese’s governing body; i.e., where Schook should be allowed to reside pending the outcome of the investigation.  Margie’s complaint cites Archdiocese policies and procedures.  Accordingly, to adjudicate that claim, the court would be forced to decide whether the Church acted in accordance withits policies and whether those policies were appropriate matters that the First Amendment commits solely to the Church.  The trial court properly held Margie’s claims for outrage and wrongful termination were barred by the First Amendment.

The court also rejected on the merits plaintiff's claim for wrongful discharge.  Judge Moore concurred only in the result.  (See prior related posting.)

President Obama Hosts White House Hanukkah Reception

On Thursday evening, President Obama and First Lady Michelle Obama hosted a Hanukkah reception in the Grand Foyer of the White House. Among those present were a number of members of Congress, two Supreme Court justices,  Cabinet members, and the Israeli ambassador to the United States. The West Point Jewish Chapel Cadet Choir sang. Rabbi Larry Bazer, Joint Forces Chaplain for the Massachusetts National Guard, lit a 90-year old menorah that recently survived Hurricane Sandy in a damaged Long Beach, New York synagogue.  In his remarks (full text), the President said in part: "To this day, Jews around the world honor the Maccabees' everlasting hope that light will overcome the darkness, that goodness will overcome evil, and that faith can accomplish miracles."

Preliminary Injunction Denied In Business' Challenge To Contraceptive Coverage Mandate

In Korte v. United States Department of Health and Human Services, (SD IL, Dec. 14, 2012), an Illinois federal district court denied a preliminary injunction sought by a for-profit construction business and its controlling shareholders in a free exercise challenge to the contraceptive coverage mandate under the Affordable Care Act.  The court held that the exercise of religion is a purely personal right; corporations cannot exercise religion even though they may advance a belief system.  However, the court held that because the religious and financial interests of the the individual controlling shareholders and the family-owned S corporation involved in the case are virtually indistinguishable, the shareholders satisfy the third-party standing test and can present the Free Exercise Clause and RFRA claims. Moving to the merits, the court rejected plaintiffs' 1st Amendment claim, finding it likely that the mandate is a neutral law of general applicability that only incidentally burdens free exercise.  Moving to plaintiffs' claim under the Religious Freedom Restoration Act, the court concluded that the mandate does not create a "substantial burden" on plaintiffs' free exercise rights:

While neither dispositive nor determinative, the Court again notes the Plaintiffs’current health insurance plan covers the very preventive health services  they seek to enjoin.  There is a palpable inconsistency in claiming the ACA contraception mandate substantially burdens their religious beliefs while they currently maintain the same coverage in their existing pre-ACA health plan.... 

Any inference of support for contraception stemming from complying with the neutral and generally applicable mandate is a de minimus burden. It appears that Plaintiffs’ objection presupposes that an insured will actually use the contraception coverage.  Even assuming that there is a substantial likelihood that a K&L employee will do so, at that point the connection between the government regulation and the burden upon the Kortes’ religious beliefs is too distant to constitute a substantial burden....

Business Owned By Pizza Mogul Challenges Contraceptive Coverage Mandate

Yesterday yet another lawsuit was filed by a closely-held business raising religious objections to the mandate under the Affordable Care Act that requires most health insurance policies to include contraceptive coverage.  The suit was filed by Domino's Farms Corp. and its sole stockholder, Domino's Pizza founder Thomas Monaghan, alleging that the mandate violates plaintiffs' rights under the 1st and 14th Amendments, RFRA and the Administrative Procedure Act.  The complaint (full text) in Domino's Farms Corp. v. Sebelius, (ED MI, filed 12/14/2012) sets out Monaghan's strong Catholic beliefs and his involvement with Catholic organizations, and alleges that he and  Domino’s Farms "share a common mission of conducting their business operations with integrity and  in compliance with the teachings, mission, and values of the Catholic Church." The complaint elaborates:

Based on the teachings of the Catholic Church, and  their deeply held  religious beliefs, Plaintiffs do not believe that contraception,  sterilization,  or abortion are properly understood  to constitute medicine, health care, or a means of providing for the well being of persons.   Indeed,  Plaintiffs believe these procedures involve gravely immoral practices, specifically the intentional destruction of innocent human life.

The Examiner reports on the filing of the lawsuit.

UPDATE: On Dec. 21, plaintiffs filed a motion for a temporary restraining order and a brief in support of the motion. (Full text.)

Walmart Pharmacist Sues Claiming She Was Fired For Praying With Customers

ABC News reported yesterday that a former pharmacist at a Bakersfield, California Walmart store has filed a religious discrimination suit in state court complaining that she was fired for praying for customers to be healed when they requested her to do so.  59-year old Anhue Doan says that in the particular incident that led to her firing she was merely touching a customer and talking to her.  Walmart says it has not had an opportunity to review the lawsuit, but that it makes reasonable accommodations for religious reasons.

U.N. Human Rights Panel Says France Violated Sikh Student's Religious Freedom Rights In Banning Turban

In a press release yesterday, United Sikhs reported on a decision by the United Nations Human Rights Committee holding that France violated a 17-year old Sikh student's freedom of religion protected under Art. 18 of the Covenant on Civil and Political Rights when it expelled him from school for wearing a keski (small turban).  The lycée took the action based on Art. L.141-5-1 of France's Education Code which enforces the principle of secularism (laïcité) by providing: "In public primary schools, secondary schools and lycées, the wearing of symbols or clothing by which pupils manifest their religious affiliation in a conspicuous manner is forbidden."  The U.N. decision, Communication 1852/2008 was adopted by the Human Rights Committee on Nov. 1, and published on Dec. 4, 2012. It reads in part:

for Sikhs males, wearing a keski or turban is not simply a religious symbol, but an essential component of their identity and a mandatory religious precept.... [T]he prohibition of wearing religious symbols affects only symbols and clothing which conspicuously display religious affiliation, does not extend to discreet religious symbols and the Council of State takes decisions in this regard on a case by case basis.  However, the Committee is of the view that the State party has not furnished compelling evidence that by wearing his  keski  the author would have posed a threat to the rights and freedoms of other pupils or to order at the school.... [T]he State party imposed this harmful sanction on the author, not because his personal conduct created any concrete risk, but solely because of his inclusion in a broad category of persons defined by their religious conduct....  [T]he  State party has not shown how the sacrifice of those persons’ rights is either necessary or proportionate to the benefits achieved.

(See prior related posting.)

IRS Rules Various Tribal Payments To Shamans Are Not Taxable Income

Last week, the Internal Revenue Service released a proposal for a Revenue Procedure to provide guidance on certain payments by tribal governments to tribe members. Application of the General Welfare Exclusion to Indian Tribal Government Programs That Provide Benefits to Tribal Members (Notice 2012-75) spells out certain payments that need not be included in the individual's gross income for federal income tax purposes.  Among excluded items are:

benefits provided under an Indian tribal governmental program that are items of cultural significance (not lavish or extravagant) or nominal cash honoraria provided to medicine men or women, shamans, or similar religious or spiritual officials to recognize their participation in cultural, religious, and social events (for example, pow-wows, rite of passage ceremonies, or funerals, wakes, burials, or other bereavement events).

Also excluded are reimbursements to tribal members for them to attend traditional ceremonies or learn about a Tribe's culture, history and traditions.  Also, payments a tribe makes to an Indian medicine man to use traditional practices to treat a tribal member's disease are not included as income by the tribal member receiving the treatment. AP reports on the IRS release.

Claims of 2 Abuse Victims Dismissed In Milwaukee Archdiocese Bankruptcy

In the ongoing Chapter 11 bankruptcy proceedings of the Catholic Archdiocese of Milwaukee, the court yesterday dismissed fraud claims by two sex abuse victims. Numerous claimants argue that the Archdiocese defrauded them by moving abusive priests to new assignments without warning parents of the danger. The Milwaukee Journal-Sentinel reports that in one of the dismissed claims the court held that the 6-year statute of limitations had run. In the other dismissed claim, the court found no fraud because the accused priest had not previously engaged in abuse. The Archdiocese says it will pay only those claims required by law. Abuse victims say it is at least morally wrong to attempt to dismiss large numbers of claimants. The Archdiocese says it should not have to pay where the statute of limitations has run, where abusing priests were not direct employees of the Archdiocese, and where victims have previously negotiated settlements.

Muslim Cabbie Sues Over Commission Dress Code That Bars Religious Clothing

According to yesterday's St. Louis Post Dispatch, Muslim cab driver Raja Awais Naeem has filed a religious discrimination lawsuit in state court against the city of St. Louis, its Metropolitan Taxicab Commission and Whelan Security, a private security company apparently in charge of security at the St. Louis airport.  Naeem, originally from Pakistan, wears religiously mandated clothing-- a kufi, a kurta (loose-fitting shirt) and shalwar (loose fitting pants).  This violates the Taxicab Commission's dress code that calls for a white shirt, black pants and does not permit a kufi (but does permit a baseball cap). He has been given a ticket by Whelan Security for wearing "foreign country religious dress." At other times his taxi license has been suspended and last week he was arrested and charged with trespassing. The Missouri Human Rights Commission issued Naeem a right-to-sue letter on his complaints.

University Settles Suit Brought By Christian Counseling Student Who Was Expelled

As reported by Baptist Press, earlier this week, Eastern Michigan University agreed to settle a lawsuit by a former student in its graduate counseling program who was expelled after she refused in a practicum course to counsel gay clients on same-sex relationships. The U.S. 6th Circuit last January held that the case should go to trial on the issue of whether the Christian student, Julea Ward, was ejected from the counseling program because of hostility toward her speech and faith. (See prior posting.) The University has agreed to pay Ward $75,000 and remove the expulsion from her record. No changes in the University's policies, programs or curricular requirements, however, were involved in the settlement.

Police Officer's Complaint About Attending Appreciation Day At Mosque Is Dismissed

In Fields v. City of Tulsa, (ND OK, Dec. 13, 2012), an Oklahoma federal district court rejected objections by a Christian police officer to a directive that he either attend or find volunteers to appear at a Law Enforcement Appreciation Day hosted by the Islamic Society of Tulsa. Police Captain Paul Fields, who was disciplined for refusing to comply with the directive, complained that he was being forced to attend an event at which there will be a discussion about the Muslim religion, but at which he is precluded from expressing his Christian faith. The court rejected plaintiff's free exercise claims, finding that the directive given to him was a neutral, generally applicable order. Nor did it infringe his right of expressive association, the Establishment Clause or his Equal Protection rights. The court also found that defendants had qualified immunity. Fox23 reports on the decision.

French Government To Emphasize Secularism, Combat Violent Religious Extremism

Reuters reported yesterday that President Francois Hollande's government in France will re-emphasize the policy of "laicite" (secularism) that they said was weakened under former President Nicolas Sarkozy. Hollande this week announced the creation of a new agency to track how the separation of church and state is implemented. The agency will also study ways to introduce classes on secular morality into the public schools.  At a conference on the official policy on secularism, French Interior Minister Manuel Valls said that the government's goal is "to detect and understand when an opinion turns into a potentially violent and criminal excess. The objective is to identify when it's suitable to intervene to treat what has become a religious pathology."  The government is concerned both about radical Salafi Muslims recruiting disaffected young people, and about the far-right lay Catholic movement, Civitas. The Interior Minister said the government is ready to deport radical foreign-born imams and disband radical faith-based groups that could become violent.

In Philippines, Reproductive Health Bill Passes Important Second Reading

In the Philippines today, the House of Representatives in an historic vote passed a Reproductive Health bill (HB 4244) on its important second reading. The bill which has been opposed for 14 years by  the country's Catholic bishops requires the national government to make reproductive health services, including free contraceptives, available to poor families. Inquirer News and GMA News both report on the lengthy House voting session. With several Catholic bishops in the House gallery, each representative had 3 minutes to explain his or her vote. According to Inquirer News, the country's Catholic bishops still hope to stop the bill, either before its third reading in the House, or in the conference committee with the Senate and the vote on the conference report.

Constitutionality of Washington Anti-Discrimination Exemption For Religious Non-Profits Certified To State Supreme Court

In Ockletree v. Franciscan Health System, 2012 U.S. Dist. LEXIS 175515 (WD WA, Dec. 11, 2012), a Washington federal district court certified to the Washington Supreme Court the question of whether the broad blanket exemption in the Washington Law Against Discrimination for non-profit religious organizations is constitutional under the Washington state constitution.  Under Wash. Rev. Code 49.60.040 the definition of "employer" subject to the state's anti-discrimination law excludes "any religious or sectarian organization not organized for private profit."  Here plaintiff, a security officer at a Catholic Hospital, claims he was discharged from his job on the basis of disability and race. In certifying the question, the court said:

The discrimination Ockletree claims (race and disability) is wholly unrelated to FHS' religious purpose, practice, or activity. It is not clear to this Court that WLAD's broad exemption is constitutional, at least in this context.

German Bundestag Passes Law Allowing Religious Circumcision of Boys

According to the New York Times, Germany's Bundestag yesterday passed legislation confirming the legality of religious circumcision.  The issue had been thrown into doubt after a Cologne district court last June held that parents lack the right to decide that their young sons should be circumcised for non-medical reasons. (See prior posting.) The new law, passed in the Bundestag by a vote of 434 to 100, with 46 abstentions, allows circumcisions to be carried out for religious or other reasons "in accordance with medical practice."  Specially trained members of a religious community (such as a Jewish mohel) can perform the procedure for boys 6 months old or younger.  Circumcisions on boys over 6 months old are required to be performed by a physician. In either case, both parents must consent to the procedure.

Kazakhstan Is Closing Unregistered Religious Organizations Through Court Proceedings

Last October, Kazakhstan enacted a new, more restrictive Religion Law. (See prior posting.) Under it, religious organizations had one year to register, or re-register, with the state. Forum 18 reported Tuesday that the Kazakhstan government is enforcing closure through the courts of Christian and Muslim religious institutions that have not met the registration deadline.  Some have consented to their closure in exchange for a promise that they can continue to operate as a branch of another registered community of the same faith. Others, such as the Azerbaijani Fatimai Shia Muslim Mosque in Almaty Region, the Tautan Molla Mosque in Karaganda Region. and the Light of the World Pentecostal Church in South Kazakhstan Region have been closed against their will.

New Decree Implementing Religion Law Takes Effect Jan. 1 In Vietnam

Radio Free Asia reported last month on new Decree 92 issued by the government of Vietnam on November 9. The Decree, replacing one originally issued in 2005, goes into effect January 1 to implement the Ordinance on Beliefs and Religion that covers religious practice in Vietnam. The Decree spells out procedures for registering places of worship, activities of religious organizations and clerics. The government recognizes 31 organizations representing 11 religions. However, non-recognized groups are banned. While some Buddhist groups are registered, the government does not recognize the Unified Buddhist Church of Vietnam, whose parent body in Paris issued a statement strongly criticizing the new Decree.

Mennonite-Owned Small Business Files Challenge To Contraceptive Coverage Mandate

Another small business and its owners have filed a lawsuit challenging the contraceptive coverage mandate issued under the Affordable Care Act.  The complaint (full text) in Conestoga Wood Specialties Corp. v. Sebelius, (ED PA, filed 12/4/2012), contends that applying the  moral teachings of their Mennonite faith, the owners of the cabinet and wood specialties company have concluded "that it would be sinful and immoral for them to intentionally participate in, pay for, facilitate or otherwise support any contraception with an abortifacient effect  through health insurance coverage the offer at Conestoga." The company's current health insurance plan excludes such drugs. In October of this year, the corporation's board of directors adopted a statement setting out the beliefs of the company owners on the sanctity of human life.  The suit claims violations of the 1st and 14th Amendments, RFRA and the Administrative Procedure Act. Independence Law Center issued a press release announcing the filing of the lawsuit.

New Jersey Prisons Now Allow Real Candles In Hanukkah Menorah Lighting Ceremony

In late November, the New Jersey Department of Corrections (NJDOC) issued a press release announcing a pilot program to allow state prison inmates celebrating Hanukkah to use NJDOC-approved candles in religious menorah lighting ceremonies.  Candles can be lit in a designated room by a NJDOC staff member or authorized volunteer religious leader. Inmates will be allowed to view the lighting and the burning down of the candles. Electric or battery-operated menorahs will also be permitted. According to an AP report on the policy change, in the past most prisons have been uncomfortable allowing real candles to be used. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Canadian Court Upholds Required Ethics and Religious Culture Program In Catholic School

LifeSite News reports that in Canada, Quebec's Court of Appeal has upheld the decision of the province's Minister of Education, Recreation and Sports refusing to exempt a Catholic school, Loyola High School, from the requirement that it offer a government-mandated course in Ethics and Religious Culture instead of  the school's own course covering other religions and ethical creeds from a Catholic perspective. A trial court ruled in favor of the school (see prior posting), but the Court of Appeal reversed.  In Le Procureur General  du Quebec v. Loyola High School John Zucchi, (Quebec Ct. App., Dec. 4, 2012) the Court of Appeal held that "exposing students to the global study of religions in a neutral perspective without requiring them to adhere to it, is not an infringement of freedom of religion." In reaching this conclusion, the court cited a  February decision by Canada's Supreme Court upholding the Ethics and Religious Culture Program in a suit by parents who objected to it. (See prior posting.)

Court Finds North Carolina's Pro-Life Plates Unconstitutional

In American Civil Liberties Union of North Carolina v. Conti, (ED NC, Dec. 7, 2012), a North Carolina federal district court held that North Carolina's "offering of a Choose Life license plate in the absence of a pro-choice plate constitutes viewpoint discrimination in violation of the First Amendment." The court reached this conclusion after rejecting arguments that the specialty license plate program was government speech. The court pointed out that the North Carolina legislature, with rancorous debate, rejected six proposals for various pro-choice plates. The ACLU issued a press release announcing the decision.  CNN reports on the decision.

New Report Focuses on Global Discrimination Against Humanists and Atheists

To mark Human Rights Day yesterday, Britain's International Humanist and Ethical Union issued (press release) the first report focusing on discrimination around the world against non-religious people. Titled Freedom of Thought 2012: A Global Report on Discrimination Against Humanists, Atheists and the Non-religious, the 72-page report covers laws and cases of discrimination country-by-country. Summarizing its findings, the report says in part:

This report shows that atheists, humanists and other nonreligious people are discriminated against by governments across the world. There are laws that deny atheists’ right to exist, curtail their freedom of belief and expression, revoke their right to citizenship, restrict their right to marry, obstruct their access to public education, prohibit them from holding public office, prevent them from working for the state, criminalize their criticism of religion, and execute them for leaving the religion of their parents.....

A handful of countries criminalize atheism per se.  In addition, there are several forms of legal measures found across many countries that either criminalize the expression of atheist beliefs or result in systematic discrimination against atheists and those who reject religion. These include laws regulating:

• Apostasy and religious conversion
• Blasphemy and religious criticism
• Compulsory religious registration, usually with a list of permissible religions
• Religious tests for citizenship or participation in civic life
• Religious control of family law
• Religious control of public education.

MSN News and Voice of Russia both cover the Report.

National Menorah Lighting Ceremony Held Sunday

As reported by CNN, on Sunday night Chabad Rabbi Levi Shemtov presided over the lighting of the National Menorah on the Ellipse south of the White House. The ceremony featured the U.S. Navy Band. Jeffrey Zients, deputy director of the Office of Management and Budget, helped light the first candle.

Plaintiffs Challenging 10 Commandments May Proceed Using Pseudonyms

As previously reported, in September the Freedom From Religion Foundation along with two students and their parents 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. On Nov. 30, the trial court judge ruled (full text of Order) that the students and the parent of one may proceed in the case identified only as Doe 1, Doe 2 and Doe 3. As reported yesterday by the Valley News Dispatch, plaintiffs' counsel had sought the order because of "the highly personal and sensitive religious matters involved, the age of the student-Plaintiffs, the (ill will) expressed by the public regarding the Plaintiffs and this case, harassing remarks about the Plaintiffs, and the potential for physical harm." Plaintiffs introduced as evidence of the hostility toward them Facebook postings, website comments, emails and letters to the editor.

FBI Releases 2011 Hate Crimes Data; 19.8% Are Motivated By Anti-Religious Bias

The FBI today released its 2011 Hate Crime Statistics. The report shows that there were 6,216 single-bias motivated incidents reported, of which 1,233 (19.8%) involved religious bias.  For comparison, for 2010 the FBI reported 6,624 single-bias incidents, with 1,322 (20%) motivated by religious bias-- though the reporting jurisdictions were not identical in the two years. (See prior posting.) The 2011 data show that of the 1,233 incidents motivated by religious bias, 771 of those were anti-Jewish; 157 were anti-Islamic; 67 were anti-Catholic; 44 were anti-Protestant; and 4 were anti-Atheist or Agnostic.  Fully 130, however, involved bias against other religions. As previously reported, efforts are underway to add anti-Sikh and anti-Hindu subcategories in order to refine the "Other Religion" number. In 2011, crimes motivated by religious bias were the third most frequent category of hate crimes.  Racial bias ranked first (2,917 incidents), and bias based on sexual orientation ranked second (1,293 incidents). The ADL issued a press release welcoming the 6% decrease in hate crimes since last year, but saying this is still far too many. [Thanks to Michael Lieberman for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Robert L. Tsai, The Politics of Hate, (Journal of Hate Studies, Vol. 10, No. 1, 2012).
• Sahar F. Aziz, Federal Civil Rights Engagement with Arab and Muslim American Communities Post 9/11, (November 9, 2012).
• Solomon A. M. Ekwenze, The Moral and Legal Frontiers of Homosexuality, Lesbianism and Gayism: A Paradox for the Third Millennium, (November 11, 2012).
• Linda Ross Meyer, Law's Suffering, (December 5, 2012).
• Haider Ala Hamoudi, Book Review: Islamic Law in Action, Authority, Discretion and Everyday Experiences in Mamluk Egypt, by Kristen Stilt, (Journal of Law and Religion, Vol. 28, No. 2, 2013).
• Max D. Siegel, The Future of Family, (George Mason University Civil Rights Law Journal (CRLJ), Vol. 23, No. 2, 2013).
• Norman P. Ho, Confucian Jurisprudence in Practice: Pre-Tang Dynasty Panwen (Written Legal Judgments), (Pacific Rim Law & Policy Journal, Forthcoming).

From elsewhere:

• Stuart G. White, Religious Exemptions: An Egalitarian Demand?, [Abstract], The Law & Ethics of Human Rights, Vol. 6, Issue 1, pp. 97-118 (Dec. 2012).
• Maimon Schwarzschild, How Much Autonomy Do You Want?, Conversations, The Journal of the Institute for Jewish Ideas and Ideals, Issue 14, Dec. 7, 2012.

Recent Books:

• Richard A. Hughes, Religion, Law and the Present Water Crisis, (Peter Lang Publishing, 2012), [Press Release].
• Wael B. Hallaq, The Impossible State: Islam, Politics, and Modernity's Moral Predicament, (Columbia Univ. Press, Nov. 2012).
• Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedience, (Oxford Univ. Press, Dec. 2012).

In Canada, Scams Are Reviving Use Of Ban On Fraudulent Use Of Sorcery

Last Saturday's National Post reports that new scams are leading Canadian authorities to revive prosecutions under an an old statute (Canada Criminal Code Sec. 365) that prohibits fraudulently pretending "to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration."  Last month, charges under the section were filed against Gustavo Gomez who, using Spanish-language radio and print ads in Quebec and Ontario convinced people they were under a curse. He then offered to lift the curse for $10,000 to $15,000. In Toronto, a similar curse-lifting scam is being carried out in the city's Chinese community. Cantonese-speaking residents are warned of a curse and are convinced to fill a bag with valuables for a special ritual to lift it. Then the fraudster runs off with the bag.  Vancouver police are reporting similar scams.

Recent Prisoner Free Exercise Cases

In Kramer v. Pollard, (7th Cir., Dec. 5, 2012), the 7th Circuit rejected an Odinist inmate's claim for damages on qualified immunity grounds. At issue were claimed free exercise and equal protection violations growing out of the refusal to allow group worship for Odinists separate from other Pagan groups. However the court reversed the dismissal of plaintiff's religious diet claim.

In Riddick v. Herlock, 2012 U.S. Dist. LEXIS 171855 (ED VA, Nov. 30, 2012), a Virginia federal district court deferred ruling on dismissal of an inmate's claim that his copy of the Qur'an was confiscated so plaintiff could amend his complaint.

In People ex rel. Day v New York State Dept. of Corrections and Community Supervision, (NY Supr. Ct., Nov. 30, 2012), a New York trial court held that an inmate was denied due process when his parole violation hearing was held in abstentia, but the reason for his absence was his Muslim Friday religious observance.

In Johnson v. Director VDOC, 2012 U.S. Dist. LEXIS 173203 (WD VA, Dec. 6, 2012), a Virginia federal district court dismissed an inmate's complaint that the Department of Corrections banned his "Nuwaupian Moorish" religion and therefore he cannot have religious DVDs or CDs in DOC facilities.

In Benton v. Yon, 2012 U.S. Dist. LEXIS 173197 (ND FL, Dec. 6, 2012), a Florida federal district court, rejecting a magistrate's recommendation (2012 U.S. Dist. LEXIS 173196, Oct. 22, 2012) that plaintiff be permitted to proceed on most of his claims, dismissed on qualified immunity grounds an inmate's complaint that his free exercise and equal protection rights were infringed when a correctional officer tore and crumbled pages in plaintiff's Qur'an and drenched his prayer rug with water, apparently out of bias toward Muslims.  According to the court: "no authoritative court has decided—as a broad principle—that a correctional officer's disrespectful treatment of an inmate's religious property ... was unconstitutional under the First and Fourteenth Amendments even when, as in this case, there is no allegation that such treatment burdened the inmate's ability to practice his religion."

In Forter v. Geer, 2012 U.S. Dist. LEXIS 54400 (D OR, April 17, 2012), an Oregon federal district court dismissed an inmate's free exercise and RLUIPA complaint regarding withholding from him of certain Christian Identity material sent to him. The court also dismissed without prejudice other claims for failure to exhaust administrative remedies. [This case while several months old was not previously covered by Religion Clause.]

Court Rejects Quaker's Challenge To Tax Procedures Invoked After Anti-War Withholding Of Amounts Due

In Boardman v. Commissioner of Internal Revenue, (ED CA, Dec. 6, 2012), a California federal district court dismissed free exercise claims by a Quaker peace activist who challenged provisions of the Tax Relief and Health Care Act of 2006 (26 USC Sec. 6330(g)) that curtail the administrative appeals process for "frivolous" taxpayer claims. The provision was invoked when plaintiff withheld half of her tax payments due because of her objections to government spending on war. She said she would pay the remaining amounts only if they were redirected to peaceful purposes. Relying on the 1st Amendment and RFRA, plaintiff argued that the government intentionally frustrated her religious beliefs by depriving her of rights and procedures that would have been available had she not asserted a religious motive for withholding a portion of her taxes. The court held that the Anti-Injunction Act (26 U.S.C. § 7421) requires dismissal of the lawsuit, since a ruling in favor of plaintiff would negatively impact the government's tax assessment methods. Alternatively, the court dismissed on the merits, holding that under past precedent plaintiff may not assert a religious objection to the country's tax system, even if she does not dispute her overall tax liability.

DNA Testing For Immigration Purposes Is Neutral Rule of General Applicability In Free Exercise Claim

In S. T. v. Napolitano, 2012 U.S. Dist. LEXIS 172658 (SD TX, Dec. 5, 2012), a Texas federal district court held that there is no 1st Amendment free exercise problem with denial of plaintiff's certificate of citizenship, passport and related documents.  S.T.'s parents-- both American citizens-- practice the Swaminarayan religion. They believe they are required to follow their swami's religious instruction to never subject S.T., as a gift from a divine source, to medical testing. U.S. officials refuse to certify S.T. as a child of American citizens born abroad without DNA testing to establish a blood relationship. The court rejected the claim that requiring DNA testing violates the 1st Amendment free exercise rights of S.T. and his parents, finding that the testing requirement is a neutral rule of general applicability. However the court and defendants agreed that plaintiff may assert his claim under the Religious Freedom Restoration Act

Bankruptcy Judge Shields Parish Assets In Archdiocese Bankruptcy

In the bankruptcy reorganization proceedings of the Archdiocese of Milwaukee (WI), a federal bankruptcy judge has refused to include at least most of the assets of separately incorporated parishes as part of the assets which creditors of the Archdiocese can claim. In In re Archdiocese of Milwaukee, (ED WI Bankr., Dec. 7, 2012), the court refused to apply the "alter ego" doctrine to ignore the separate corporate status of the parishes:

The Committee has failed to state a plausible claim that the Debtor and Parishes failed to observe corporate formalities, that funds were siphoned, that officers or directors of the Parishes were nonfunctional, or that there was an absence of corporate records.  Absolutely no facts were alleged to make plausible a claim that the Debtor and the Parishes “egregiously ignored” corporate formalities or that control was so "pervasively exercised" to apply the alter ego doctrine in this case.

The court similarly refused to apply the equitable doctrine of substantive consolidation to make parish assets available to creditors.  Reporting on the decision, the Milwaukee Journal-Sentinel says that the parishes, however, could still face claims that creditors should have access to $35 million in funds that the Archdiocese moved off its books in 2005.

L.A. Church Sues Former Pastor, His Wife and Others For Fiduciary Breaches and Fraud

The Los Angeles Times reports that last Tuesday a suit was filed in a California state court by the oldest Black church in Los Angeles against its former pastor John Hunter, his wife and a group of other church officials and directors of affiliated corporations in a battle for control of the church. According to the paper:

Hunter has had a rocky tenure at the church. Since taking over First AME in 2004, Hunter has been sued for sexual harassment, a civil claim that was settled for an undisclosed amount. The Times reported in 2008 that an internal audit found he charged $122,000 in jewelry, family vacations and clothing to the church's credit card. He later agreed to a nine-year repayment plan.

He earned a generous salary during his tenure, lived in a $2-million home and drove a Mercedes-Benz paid for by the church. His wife earned $147,000 a year running nonprofit organizations connected to the 19,000-member congregation.

But over the last few years, the hilltop church in the West Adams district has fallen into debt. The church owes nearly $500,000 to creditors and some vendors say they have not been paid in more than a year.

The complaint (full text) in First African Methodist Episcopal Church of Los Angeles v. Hunter, (CA Super. Ct., filed 12/4/2012), alleges that when John Hunter was transferred to a new church, his wife Denise continued to control affiliated corporations that provide social services rather than allowing FAME's new pastor to do so. It alleges breach of fiduciary duty, fraud and conversion. It asks for injunctive and declaratory relief and for damages of over $1 million.

New York Hasidic Sex Abuse Trial Uncovers Extortion From "Modesty Committees"

According to Thursday's New York Jewish Week, testimony in the Brooklyn sex abuse trial of Nechemya Weberman --  an unlicensed "therapist" to whom schools of the Hasidic Satmar sect referred "wayward" girls for "help" -- has disclosed important information about the insular Satmar community:

the alleged victim ... has been subjected to intense pressure to withdraw her claim, including intimidation, harassment, social ostracism of her family and even a reported $500,000 bribe.... The case is also significant for the amount of public support the alleged victim has received ... from her family, close friends and advocates, many of whom have used social media to spread the word about the trial and appeared in court....

However, many people with ties to the chasidic community believe there is something even more important about the Weberman case — namely, what it exposes about the larger communal role played by chasidic "modesty committees" in communities like Williamsburg, Borough Park and Kiryas Joel. These groups — to which, sources say, Weberman was connected — originated years ago to guard the "purity" of the community by enforcing strict dress and behavior codes that characterize the insular chasidic lifestyle. But, insiders say, the tactics of these self-appointed, freelance modesty patrols have evolved from public shaming to extortion and threats....

President Issues Hanukkah Greetings

Yesterday, the White House released a statement (full text) sending warmest wishes from the President and Michelle Obama to all those around the world celebrating Hanukkah. The statement said in part:

Hanukkah is a time to celebrate the faith and customs of the Jewish people, but it is also an opportunity for people of all faiths to recognize the common aspirations we share.... [L]et us reaffirm our commitment to building a better, more complete world for all.

The 8-day festival of Hanukkah begins this evening.

More On Yesterday's Same-Sex Marriage Cases Cert. Grant-- Standing

In granting certiorari yesterday in two same-sex marriage cases (see prior posting), the U.S. Supreme Court (order list) instructed the parties to brief and argue specified standing issues, in addition to the questions presented in the petitions for certiorari.  In Dennis v. Perry, the California Proposition 8 case, the Court ordered the parties to brief and argue: "Whether  petitioners have standing under Article III, §2 of the Constitution in this case."  In United States v. Windsor, the Defense of Marriage Act case, the Court ordered the parties to brief and argue: "Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case."

Supreme Court Will Review 2 Same-Sex Marriage Cases

The U.S. Supreme Court today granted certiorari in two same-sex marriage cases. (Order List.) The first of the cases is Hollingsworth v. Perry, (Docket No. 12-144, cert. granted 12/7/2012).  In the case, decided by the 9th Circuit under the caption Perry v. Brown, the appeals court in a 2-1 decision struck down California's Proposition 8 that eliminated the right-- previously created by the California Supreme Court's interpretation of the state constitution-- for same-sex couples to marry. Judge Reinhardt, in an opinion joined by Judge Hawkins, held that even though California may not have had the obligation to grant same-sex couples the right to marry, once it did, it could not take that right away without some legitimate reason for doing so. Here there was no legitimate reason. (See prior posting.) En banc review was denied, but in a decision generating dissenting and responding opinions. (See prior posting.) The certiorari petition (full text), however frames the issue more broadly:

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

Scotus blog has links to the 9th Circuit opinion and all the filings with the Supreme Court in the case.

The second case in which the Supreme Court granted review is United States v. Windsor, (Docket No. 12-307, cert. granted 12.7/2012).  In the case, the 2nd Circuit in a 2-1 decision held that Section 3 of the Defense of Marriage Act is unconstitutional under the equal protection component of the 5th Amendment. In a suit by the surviving spouse of a lesbian couple who was denied the spousal deduction under the federal estate tax law, the majority held that it must apply heightened (intermediate level) scrutiny because homosexuals are a quasi-suspect classification. (See prior posting.) The petition for certiorari (full text)-- which was filed before the 2nd Circuit came down with its decision-- defines the question presented as:

Does Section 3 of the Defense of Marriage Act,  1 U.S.C. § 7, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,”  deprive same-sex couples  who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States?

Scotus blog has links to the 2nd Circuit opinion and all the filings with the Supreme Court in the case.

Press coverage of the Supreme Court's action today included the New York Times, Yahoo! News, and Wall Street Journal.

UPDATE: See follow-up post- "More On Yesterday's Same-Sex Marriage Cases Cert. Grant- Standing".

Santa Monica Park Rules Change Impacts Hanukkah As Well As Christmas Displays

A good deal of attention has been given by the media to the change in rules adopted in Santa Monica, California, ending the traditional Christmas story dioramas in Palisades Park during the holiday season.  The new city ordinance, upheld by the courts, excludes unattended displays and has led a coalition of Christian groups plans to hold a Live Nativity Display instead. (See prior posting.) Less noticed has been the impact of the rule change on other displays.  Yesterday's Los Angeles Jewish Journal reports that it also impacts the two 12-foot-tall, propane-fueled menorahs normally set up in the park by the Chabad of Santa Monica during Hanukkah.  This year instead the menorahs will lit, and then moved away each night on pick-up trucks. The change also impacts the separate menorah lighting that has been held for the past 5 years on the Promenade sponsored by Downtown Santa Monica, Inc. They will now move their 10-foot tall menorah onto the Promenade on dollies each time it is to be lit, and then take it away.