USDA Releases Report On Indian Sacred Sites

On Dec. 6, the Department of Agriculture released a lengthy report titled USDA Policy and Procedures Review and Recommendations: Indian Sacred Sites. A 3-page background memo accompanying the report summarizes its findings:

[The report calls] for USDA and the U.S. Forest Service to work more closely with Tribal governments in the protection, respectful interpretation and appropriate access to American Indian and Alaska Native sacred sites on national forests and grasslands. The report recommends steps the Forest Service should take to strengthen the partnerships between the agency, Tribal governments, and American Indian and Alaska Native communities to help preserve America’s rich native traditions.

 Summit County (CO) Citizens Voice provides additional coverage of the report.

In Egypt, Salafists Sue Wealthy Newspaper Owner Over Cartoon Seen As Insulting To Prophet

Daily News Egypt reported last week that a lawsuit was filed by the National Centre for Defence of Freedoms (NCDF) in an Egyptian court against Naguib Sawiris, the owner of Al-Masry Al-Youm newspaper, and the newspaper's cartoonist Doaa El-Adl.  The suit, which has been referred to the chief prosecutor for investigation, revolves around a cartoon (reproduced on Cartoon Movement) depicting an Egyptian man with angel wings and a halo on a cloud with Adam and Eve telling them they would never have been expelled from heaven if they had voted in favor of the referendum. The suit claims the cartoon is insulting to the Prophet.  Apparently Salafist lawyer Khaled El-Masry, secretary-general of the NCDF, interpreted the cartoon as depicting the Prophet Muhammad. In the Air reports that defendant Naguib Sawiris is listed by Forbes as the second wealthiest man in Egypt. Earlier this year, Egyptian courts dismissed for lack of standing lawsuits by Salafist lawyers against Sawiris over another cartoon-- depicting Mickey Mouse with a beard and Minnie Mouse in a veil. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Clark v. Cambria County Prison, 2012 U.S. Dist. LEXIS 179789 (WD PA, Dec. 20, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 181044,  Nov. 15, 2012) and dismissed an inmate's complaint that his prison does not have separate Jehovah's Witness religious services.

In Davidson v. Masley, 2012 U.S. Dist. LEXIS 182293 (SD NY, Dec. 19, 2012), a New York federal district court refused to reconsider its dismissal for lack of prosecution of a suit by an inmate challenging the manner in which halal food is furnished to inmates at Rikers Island.

In Whittier v. Arpaio, 2012 U.S. Dist. LEXIS 182155 (D AZ, Dec. 27, 2012), an Arizona federal district court dismissed, with leave to amend, an inmate's complaint that he does not have access to church services because of his classification.

Court Grants Mennonite-Owned Business TRO In Challenge To Contraceptive Coverage Mandate

In Conestoga Wood Specialties Corp. v. Sebelius, (ED PA, Dec. 28, 2012), a Pennsylvania federal district court issued a 14-day temporary restraining order barring enforcement of the Affordable Care Act contraceptive coverage mandate against a cabinet and wood specialties company whose Mennonite owners object on religious grounds to furnishing coverage for contraceptives they consider abortifacients. (See prior posting.) The TRO is limited to "the  provision  of  insurance coverage  for  the contraceptive services to which Plaintiffs object on religious grounds." The court set a hearing on a preliminary injunction for Jan. 4.  In granting the TRO, the court said:

In light of the opinions of several courts favoring Plaintiffs’ position in this case, we find that Plaintiffs have demonstrated a reasonable probability of success on the merits of their RFRA  claim.  While  additional  evidence is  necessary to  determine  whether Plaintiffs’ likelihood of success is sufficient to justify an injunction for the duration of the litigation, we find it to be adequate to warrant temporary relief pending a preliminary injunction hearing.

Philadelphia Inquirer reports on the decision.

Missouri City's Ordinance Is Overbroad In Likely Covering KKK Leafleting

In Traditionalist American Knights of the Ku Klux Klan v. City of Desloge, Missouri, (ED MO, Dec. 27, 2012), a Missouri federal district court issued a preliminary injunction against enforcement of a Missouri city's anti-solicitation ordinance because it was drafted so broadly that it likely covers expressive conduct on sidewalks, curbs, medians, and alleyways, as well as on streets.  The court found the ordinance to be overbroad and not narrowly tailored to serve a significant governmental interest.  Plaintiffs in the case, a KKK chapter, wanted to hand out leaflets on topics such as as the impact of Shariah law on the United States, risks to "White Americans" from racially-motivated attacks, information about Klansmen, and risks posed by methamphetamine.

7th Circuit: Contraceptive Coverage Mandate Imposes Substantial Free Exercise Burden On Business Owners

The U.S. 7th Circuit Court of Appeals yesterday, in a 2-1 decision, issued an injunction pending appeal preventing enforcement of the Affordable Care Act contraceptive coverage mandate against a small for-profit construction company. The company's Catholic owners say the mandate violates their religious liberty.  In Korte v. Sebelius, (7th Cir., Dec. 28, 2012), the court explicitly disagreed with the 10th Circuit's holding last week in the Hobby Lobby case that the mandate did not impose a substantial burden on religious exercise. (See prior posting.)  The 7th Circuit majority said:

we think this misunderstands the substance of the claim. The religious‐liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.... [T]he Kortes have established a reasonable likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise.

In the case, an Illinois federal district court (see prior posting) had found no substantial burden, in part because the company's current health insurance plan covers contraceptives. Apparently plaintiffs were unaware of this until shortly before they filed the current lawsuit. The 7th Circuit majority said: "it is well‐established that a religious believer does not, by inadvertent nonobservance, forfeit or diminish his free‐exercise rights."

Judge Rovner dissented, concluding that plaintiffs had not shown either irreparable harm or a likelihood of success on the merits, saying:

What the Kortes wish to do is to preemptively declare that their company need not pay for insurance which covers particular types of medical care to which they object, despite the fact that neither the company nor its owners are involved with the decision to use particular services, nor do they write the checks to pay the providers for those services.

American Center for Law and Justice issued a press release announcing the decision. Reuters today reports on the decision.

Two Suits Challenge Tax Code Favoritism For Churches

This month, two separate lawsuits were filed claiming that the Internal Revenue Service unconstitutionally favors religious organizations and churches over other non-profit organizations. On Dec. 20, American Atheists announced that, along with two state organizations, it has filed suit in a Kentucky federal district court challenging numerous provisions that advantage religious non-profits.  The complaint (full text) in American Atheists, Inc. v. Shulman, (ED KY, filed 12/20/2012), alleges that churches and many religious organizations are not required to submit an application for a Section 501(c)(3) exemption or pay the fee for applying that is imposed on other non-profits; they are not required to make annual informational filings on Form 990 with the IRS; special procedures need to be followed before civil tax examinations are instituted for churches and religious organizations; and churches are able to take advantage of the parsonage exemption. Plaintiffs allege that this violates the establishment clause and denies them equal protection of the laws. They also claim that this violates the religious test prohibition in Art. VI, Sec. 3 of the Constitution because "501(c)(3) entities are public Trusts."

Meanwhile, this week the Freedom From Religion Foundation, announced a new lawsuit (filed along with one of its local affiliates) challenging the exemption for churches and affiliated organizations from filing an application to obtain non-profit status, paying a filing fee and from filing annual reports on Form 990.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Miller, (WD WI, filed 12/27/2012), claims that these exemptions violate the establishment clause and plaintiffs' equal protection rights. FFRF has previously filed suits challenging the parsonage allowance and the IRS' non-enforcement of electioneering restrictions against churches. (See prior postings 1,  2). Friendly Atheist blog reports on both of this month's cases. [Thanks to Scott Mange for the lead.]

Harsh Sharia Law Applied By Islamists In Northern Mali

The New York Times reported yesterday on the application of a harsh version of sharia law in northern Mali.  Since the Islamist takeover of the region last spring, at least 14 people convicted of theft have had their hand amputated as punishment. Some cases involve theft of guns for use in helping Mali to retake the north. The article has a particularly brutal description of amputation of the hand of the brother of the police commissioner of Gao.  One case of a couple being stoned to death for having children out of wedlock has also been reported. Dozens of others people have been publicly flogged with camel-hair whips or tree branches for smoking in pubic or playing music on the radio. Also, only Koranic verses can be used as cell phone ring tones. Trials are rudimentary, and sentences are often carried out quickly.

Islamic Nations Continue Objections To Certain Proposed gTLDs; Iran Files Late Submittals

As previously reported, last June the Internet Corporation for Assigned Names and Numbers (ICANN) published a list applications for new generic Top-Level Domain (gTLD) names. Several organizations applied for gTLD's that have, or may have, a religious connection or connotation. (See prior posting.) Members of ICANN's Governmental Advisory Committee had until Nov. 20 to file official "early warnings" to applicants raising concerns over specific applications. In that process, several early warnings for proposed religious-related gTLDs were filed. The UAE expressed concern over .islam and .halal.  India raised questions on .islam, .bible, .ram and .halal. (Full ICANN List of GAC Early Warnings). As reported by BNA Electronic Commerce and Law Report yesterday [subscription required], ICANN has now posted a new page linking to correspondence from Government Advisory Committee members  submitted after the early warning deadline.  The only items included so far are from Iran which has targeted 29 gTLD proposals, most because they refer to activities prohibited or regulated by Islamic religious law--proposed gTLDs such as .gay, .poker, .wine.  Iran wants these applications to be withdrawn or rejected, or else wants applicants to provide for the blocking of these domains in countries that object to them. For certain other objectionable domains, such as .imamat, Iran says concerns are so great that only withdrawal or rejection of the application is acceptable to it. Earlier in the process, Saudi Arabia had filed objections to a number of the same top level domain names that are now targeted by Iran. (See prior posting.)

District Court Finds Contraceptive Mandate Does Not Substantially Burden Religious Exercise

Yesterday in Grote Industries, LLC v. Sebelius, (SD IN, Dec. 27, 2012), an Indiana federal district court refused to grant a preliminary injunction to a for-profit business that manufactures vehicle safety systems and its Catholic owners who claim that their religious liberty rights are infringed by the contraceptive coverage mandate under the Affordable Care Act.  The company currently operates a self-insured health plan that excludes coverage for abortifacient drugs, contraception, and sterilization for its 464 full-time employees.  The plan is not a grandfathered one, so that the coverage requirements take effect on Jan. 1.  Focusing on the Religious Freedom Restoration Act challenge, the court held that the mandate does not impose a substantial burden on plaintiffs' free exercise rights. Citing in particular the O'Brien case, a recent Missouri federal district court decision reaching the same conclusion (see prior posting), the court concluded that the burden imposed by the mandate "is likely too remote and attenuated to be considered a substantial burden." It held that its analysis is not changed by the fact that here the plan is a self-insured one.

Acknowledging that Plaintiffs object not just to the use of contraceptives, but to furnishing coverage for them, the court quoted O'Brien's language:

RFRA is a shield, not a sword.  It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own...

The court added:

We can imagine a wide variety of individual behaviors that might give rise to religiously-based scruples or opposition, such as alcohol consumption or using drugs or tobacco, or homosexual-related behaviors, all of which can threaten health conditions requiring treatment and care.  If the financial support for health care coverage of which Plaintiffs complain constitutes a substantial burden, secular companies owned by individuals objecting on religious grounds to such behaviors, including those businesses owned by individuals objecting on religious grounds to all modern medical care, could seek exemptions from employer-provided health care coverage for a myriad of health care needs, or for that matter, for any health care at all to its employees.

The court went on to reject 1st Amendment free exercise, establishment clause and free speech challenges, as well as due process and Administrative Procedure Act claims.  It found that the mandate is likely a neutral law of general applicability. It rejected a "compelled speech" argument saying that any subsidy for education and counseling services merely involves speech incidental to the conduct of receiving health care.

4 FFRF Signs Countering Christmas Displays Are Stolen Or Vandalized

In a news release yesterday, the Freedom from Religion Foundation reported that it has put up Winter Solstice banners or signs in 12 cities this year to counter religious displays on public property. Many of the banners use text that calls religion "myth & supestition." However the FFRF signs have been stolen or vandalized in 4 locations-- the Boston Commons; next door to a police station in Gladwin, Michigan; in Warren, Michigan; and in Wilkes-Barre, Pennsylvania where the sign was vandalized in front of TV cameras.

Homeowners Sue New Mexico County Challenging Its Zoning Settlement With UDV Church

Wednesday's Santa Fe New Mexican reports on a state court lawsuit by six New Mexico homeowners challenging on constitutional grounds the decision by Santa Fe County  to settle a lawsuit filed by O Centro Espírita Beneficente União do Vegetal (UDV).  UDV, a church that uses a hallucinogenic tea as a sacrament, sought county zoning approval to build a temple, a guesthouse for a clergy member, and a greenhouse, as well as renovating a yurt, on property of Seagram’s whiskey heir Jeffrey Bronfman who is a local UDV leader. (Background.) The County Commission voted 3-2 to deny the required permits, saying that the construction was incompatible with the neighborhood.  UDV sued in federal district court charging religious discrimination. [corrected]  This led the county to negotiate a settlement with UDV under which the county would approve a new temple, but not a greenhouse or yurt. UDV would limit the times and number of people attending services.  The county agreed it would also pay $300,000 to extend a waterline and install a fire hydrant on the property, and would spend another $80,000 for a waste water system there.  Plaintiffs in the state court lawsuit claim that these expenditures would violate the anti-donation clause of the state constitution as well as the Establishment Clause of the U.S. Constitution. [Thanks to Steven Siegel for the correction above.]

Iran Bars Overflights During Call-To-Prayer Times

The New York Times reported yesterday that Iran's Civil Aviation Organization has issued a directive prohibiting all aircraft from flying across the country during Adhan, the 5-times daily Muslim call for prayer. However the directive did not indicate whether planes in flight would be re-routed or forced to land.  Also under the new directive, no planes may take off in the morning until 30 minutes after the pre-dawn call to prayer. The head of the Civil Aviation Organization said the new rules were designed to give air travelers the time to carry out their religious duties. [Thanks to Scott Mange for the lead.]

President Extends Best Wishes To Those Celebrating Kwanzaa

The White House yesterday issued a statement (full text) from the President and the First Lady extending best wishes to all those celebrating Kwanzaa. The statement describes the festival as a "week-long celebration of African-American history and culture through the seven principles of Kwanzaa: unity, self determination, collective work and responsibility, cooperative economics, purpose, creativity, and faith."

Parents Sue Rabbi For Sexual Assault and Defamation After He Received Light Criminal Sentence

Yesterday's Albany (NY) Times-Union reports on a civil suit for sexual assault and defamation that has been brought in state court in Albany County, New York against a former Chabad rabbi. In January 2010, Rabbi Yaakov Weiss plead guilty to misdemeanor charges of child endangerment after admitting inappropriate sexual contact with two 13-year old boys. Apparently Weiss' conduct with the boys took place in a mikveh (ritual purification pool). Under the plea agreement, Weiss was sentenced to 60 days in jail and 3 years probation, and was not required to register as a sexual offender. Weiss has also been suspended from his position with the local Chabad organization.  The boys parents, upset at the light sentence Weiss received, have now filed this civil suit which will come to trial next month. The defamation charges in the suit stem from Weiss' claim that the boys' allegations were "100% untrue." Meanwhile Weiss has complained to a rabbinical tribunal in Rockland County about the parents filing of the civil lawsuit.  The religious tribunal could potentially excommunicate the parents for bringing the lawsuit in civil court rather than submitting it to a religious tribunal for adjudication.

Justice Sotomayor Denies Injunction Pending Appeal In Hobby Lobby's Contraceptive Coverage Challenge

As previously reported, Hobby Lobby Stores and its sister corporation Mardel, Inc. have been seeking a temporary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate against them as they litigate their religious liberty challenges to the health care insurance rule.  After the 10th Circuit denied them an injunction, they sought a injunction from Supreme Court Justice Sotomayor in her role as Circuit Justice.  Yesterday, Sotomayor refused to grant the injunction.  In an in chambers opinion in Hobby Lobby Stores, Inc. v. Sebelius, (Sup. Ct., Dec. 26, 2012), Justice Sotomayor wrote in part:

Applicants do not satisfy the demanding standard for the extraordinary relief they seek.  First, whatever the ultimate merits of the applicants’ claims, their entitlement to relief is not “indisputably clear.”... This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion.... Moreover, the applicants correctly recognize that lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims....

AP reports on the decision, as does SCOTUS Blog.

UPDATE: Following Justice Sotomayor's decision, the Becket Fund, counsel for Hobby Lobby announced:

Hobby Lobby will continue their appeal before the Tenth Circuit. The Supreme Court merely decided not to get involved in the case at this time. It left open the possibility of review after their appeal is completed in the Tenth Circuit. The company will continue to provide health insurance to all qualified employees. To remain true to their faith, it is not their intention, as a company, to pay for abortion-inducing drugs.

Company Settles EEOC Suit Alleging Refusal To Hire 7th Day Adventist

The EEOC announced last week that Altec Industries, Inc., a Birmingham, Alabama based manufacturing company, has agreed to settle a religious discrimination lawsuit brought against it by the EEOC. The suit claims that Altec refused to hire Seventh Day Adventist, James Wright, at its Burnsville, N.C. manufacturing  facility after it learned that Wright could not work on his Sabbath (sundown Friday to sundown Saturday).  Altec will pay $25,000 in damages to Wright, and will also provide training on religious discrimination to certain managers and supervisors, post notices of employee rights and report periodically to the EEOC.

Government Agrees That Priests for Life Qualifies For ACA Mandate Enforcement Safe-Harbor

Last January, the Department of Health and Human Services announced that it would impose a moratorium on enforcement of the Affordable Care Act contraceptive coverage mandate until August 1, 2013  for non-profit employers who, based on religious beliefs, did not currently provide contraceptive coverage in their insurance plan. (See prior posting.) In August of this year, HHS issued a Guidance on the Temporary Enforcement Safe Harbor confirming that the temporary enforcement safe harbor would be in effect until the first plan year that begins on or after August 1, 2013 for non-profit employers with conscience exemptions which have consistently not provided contraceptive coverage in the past. Now in Priests for Life v. Sebelius, (ED NY, Dec. 21, 2012), the parties have filed a stipulation in a New York federal district court agreeing that Priests for Life qualifies for the temporary enforcement safe harbor. Priests for Life will provide a notice to its health plan participants that contraceptive services will not be covered during the safe-harbor period. The stipulation comes one day after oral arguments in Priests for Life's challenge to the mandate. (Press release from American Freedom Law Center.)  (See prior related posting.)

Top 10 Church-State and Religious Liberty Developments For 2012

Here are my nominations for the 2012 Top Ten Church-State and Religious Liberty Developments:

1.  The long-simmering tensions between the U.S. Conference of Catholic Bishops and the Obama Administration took on a greater focus when in May some 40 Catholic institutions, in 12 lawsuits, filed challenges to the Obama administration's mandate that health insurance policies include contraceptive coverage. Other suits followed. The Administration had granted a one-year moratorium to non-profit institutions, while it worked unsuccessfully to produce a compromise that might be acceptable to religiously affiliated non-profit institutions. Meanwhile, for-profit companies owned by Catholics and conservative Christians also filed an avalanche of suits seeking conscience exemptions from the mandate.

2.  The battle between religious conservatives and advocates of marriage equality continued to rage on numerous fronts.  Each side saw some victories and some defeats, but proponents of marriage equality had a good year.  Legislatures in Washington and Maryland approved same-sex marriage. In November, voters in 4 states also indicated approval of same-sex marriage, but earlier in the year North Carolina voters approved a ban on same-sex marriage.. The 9th Circuit in a narrow opinion struck down California's Proposition 8, and the Supreme Court has agreed to review that decision. The Defense of Marriage Act was struck down by the 1st Circuit, the 2nd Circuit and a California federal district court. The Supreme Court has agreed to review the 2nd Circuit case. Same-sex marriage bans in Nevada and Hawaii were upheld by federal district courts.

 3.  Mitt Romney lost the Presidential election, but his Mormon religious faith was not an important issue in the campaign. Indeed, Romney's activities as a lay Mormon pastor were used to his advantage at the Republican Convention.

4. The Supreme Court in Hosanna-Tabor v. EEOC adopted the "ministerial exception" doctrine for employment discrimination cases, finding it to be constitutionally-based.

5.  Egypt has struggled to draft and adopt a new constitution.  The role the new constitution will provide for Sharia law in the country has been one of the central issues in debates on the document.

6.  A 17-year long struggle by the New York City Board of Education to bar churches from renting out school buildings on weekends for church services, even though the buildings are available to other community groups, was revived by a federal district judge. Most observers had thought that a 2011 decision by the 2nd Circuit had ended the dispute in favor of the Board of Education, but the court held that the 2nd Circuit had not passed on the Bronx Household of Faith's free exercise and establishment clause claims. The district court's vindication of the free exercise claim is now on appeal.

7.  An online video promoting the obscure movie "Innocence of Muslims" triggers demonstrations against American embassies in the Muslim world. The video leads to an unusual set of legal proceedings-- litigation involving probation violations by the producer, attempt by an actress in the movie to have it removed from YouTube, and in abstentia convictions in Egypt.

8.  New questions are raised around the world regarding ritual circumcision of young boys by Muslims and Jews. Germany's Bundestag confirmed the legality of religious circumcision after a Cologne district court held that parents lack the right to decide that their young sons should be circumcised for non-medical reasons. Ritual circumcision is also questioned in Australia and Norway. Meanwhile, in the United States some Orthodox Jewish groups sue challenging the New York City health department's new regulation requiring informed consent from parents when a Jewish religious circumcision involves use of the oral suction technique (metzitzah b'peh).

9.  The court martial trial of accused Fort Hood mass shooter Maj. Nidal Hasan is delayed as the question of his right to wear a beard for religious reasons at his trial is litigated.  In December, an appeals court held there was insufficient evidence to show that the beard materially interfered with the court martial proceedings. It also ordered court martial judge Gregory Gross removed from the case for the appearance of bias.

10.  In the wake of Congress' reorganization of the U.S. Commission on International Religious Freedom in late 2011, developments demonstrated internal divisions and conflicts in the Commission. The pressure of expiring terms of 5 Commissioners led to early release of USCIRF's annual report and to a public statement by 5 of the Commissioners charging that the report wrongly reflected the votes of Commissioners on the status of Turkey.  Meanwhile a former USCIRF staff member sued alleging anti-Muslim bias against her.  In an unrelated case, a different employee was sentenced to prison for embezzling USCIRF funds. And Muslim groups criticized one of the new Commissioners, claiming he is anti-Muslim.

Some of my picks were rather obvious candidates for inclusion, while others may surprise some readers. A number of the top developments continue trends reflected in last year's list.  You may also find it interesting to compare two other "Top 10" lists: Religion Newswriters 2012 Top 10 Religion Stories and Blog from the Capital's Top Religious Liberty Stories of 2012. I invite you to post your comments or disagreements with my choices this year.

Official Results: Egyptian Voters Approve Constitution By 63.8% Vote

Egypt's Supreme Election Committee told a news conference today that the country's new constitution has been approved by 63.8% of those casting votes.  According to Al-Jazeera, the election commission says it reviewed every complaint that has been filed by independent and opposition election monitors, and has rejected all of them.  The official turnout for the election, held in two parts on Dec. 15 and 22, was 32.9% of the country's 52 million eligible voters.  Earlier this month, National Review published an excellent analysis of the provisions in the new constitution that relate to religious freedom and protection of the rights of minorities. The document was drafted largely by Islamists after representatives of non-Islamist parties and the Coptic Christian minority withdrew in protest from the Constitutional Assembly that was drafting the document. (See prior related posting.)

UPDATE: Reuters reports on Wednesday that President Morsi has signed the new constitution into law.

Obamas Wish Everyone Merry Christmas and Happy Holidays

President Obama and the First Lady used the President's weekly address (full text) last Saturday to extend wishes for a Merry Christmas and Happy Holidays to everyone.  In the address, the Obamas made special mention of military families, and the President also said:

For my family and millions of Americans, it’s a time to celebrate the birth of Christ. To reflect on His life and learn from His example.  Every year, we commit to love one another.  To give of ourselves.  To be our brother’s keeper.  To be our sister’s keeper.  But those ideas are not just part of our faith.  They’re part of all faiths.  And they unite us as Americans.

A video of the address is available online.

IRS Seizes Synagogue and Day School For Back Taxes

JTA reported yesterday that in Worcester, Massachusetts, the Internal Revenue Service has seized a building housing a synagogue and Jewish day school for non-payment of taxes. The school owes over $435,000 in taxes dating back to 2004-- mostly payroll taxes that have not been paid. A public auction of the building is scheduled for January 4. In the meantime, Yeshiva Achei Tmimim synagogue and Yeshiva Academy day school continue to operate.

Federal Court Says Contraceptive Coverage Mandate Preempts State Law Seeking To Undercut It

As previously reported, last year in a move to oppose the federal mandate on contraception coverage in health insurance policies, the Missouri legislature enacted SB 749 that requires insurance companies to offer and issue policies that exclude coverage for contraceptives where coverage is contrary to the moral, ethical or religious beliefs or tenets of the person or entity seeking insurance.  Gov. Jay Nixon vetoed the bill, but the legislature overrode the veto. Now, in Missouri Insurance Coalition v. Huff, (ED MO, Dec. 21, 2012), a Missouri federal district court has issued a temporary restraining order barring the Department of Insurance from enforcing these provisions of SB 749, finding that under the Constitution's Supremacy Clause the provisions are preempted by the Affordable Care Act's contraceptive coverage mandate. Insurance News Net reports on the decision.

Pakistani Villagers Attack Traveler Accused Of Burning Qur'an

Reuters reported on Saturday on the violence in the Pakistani village of Seeta against a man accused of burning a Qur'an.  The man, a traveler, had spent Thursday night as the only person in the local mosque.  The next morning charred remains of a Qur'an were found there.  Villagers beat the man and turned him over to police. A few hours later, 200 villagers invaded the police station, dragged the suspect out and set him on fire. Police say 30 people have been arrested for murder and 7 police officers have been detained for negligence in the incident. [Thanks to Matthew Caplan for the lead.]

Recent Articles of Interest

From SSRN:

• Tom Ginsburg, Constitutionalism: East Asian Antecedents, (Chicago-Kent Law Review, 2013).
• Mohamed A. Arafa, President Mursi's Egypt Arab Spring: Does Egypt Will Continue to Be a Civil State or Under the Umbrella of Islamic (Sharie‘a) Law and Islamism?, (US-China Law Review, Vol. 9, No. 6, 2012).
• Veronique Champeil-Desplats, Laïcité Et Liberté Religieuse En France: Aux Sources De La Loi Interdisant La Dissimulation Intégrale Du Visage Dans L'Espace Public (Secularism and Religious Freedom in France: On the Legal Provisions Prohibiting the Veil to Cover the Face in Public Space), (Revista Derecho del Estado, No. 29, 2012).
• Xiomara Lorena Romero Perez, La Libertad Religiosa En El Sistema Interamericano De Protección De Los Derechos Humanos (Análisis Comparativo Con El Ordenamiento Jurídico Colombiano) (Religious Freedom in the American System of Human Rights Protection (Comparison with the Colombian Legal System)), (Revista Derecho del Estado No. 29, 2012).
• Omar M, Dajani, Responding to Ethnic and Religious Conflict in the Emerging Arab Order: The Promise and Limits of Rights, (November 10, 2012).
• Lucinda Ferguson, 'Families in All Their Subversive Variety': Over-Representation, the Ethnic Child Protection Penalty, and Responding to Diversity Whilst Protecting Children, (Studies in Law, Politics, and Society, Forthcoming).
• Nicholas A. Primrose, Has Society Become Tolerant of Further Infringement on First Amendment Rights?, (December 4, 2012).

From SSRN (Jewish Law and Islamic Law)

• Yitshak Cohen, Midrashic Exegesis and Biblical Interpretation in the Meshekh Hokhmah – The Man and the Work – Their Legal Stature and Normative Influence, (Jewish Law Annual, Forthcoming).
• Yitshak Cohen, The Rabbbinic Decisors and the Halakhic Material in the Or Sameah, (Jewish Law Association, Forthcoming).
• Yitshak Cohen, The Jerusalem Talmud in Rabbi Meir Simcha Hakohen's Halachic-Legal Work, (9 Kiryat Hamishpat L. Rev. 301, 2011).
• Yitshak Cohen, Juridical Ideology and Its Influence upon the 'Or Sameach's' Halachic Decision Making Process, (Halakhah: Explicit and Implied Theoretical and Ideological Aspects, Avinoam Rosenak & Dafna Schreiber, eds., 2012).
• Mark Cammack and Michael Feener, The Islamic Legal System in Indonesia, (Pacific Rim Law & Policy Journal, Vol. 21, No. 1, 2012).

From SmartCILP:

• David M. Engel, Vertical and Horizontal Perspectives on Rights Consciousness, [Abstract], 19 Indiana Journal of Global Legal Studies 423-455 (2012).
• Daisy Hurst Floyd, Timothy W. Floyd and Sarah Gerwig-Moore, Learning From Clergy Education: Externships Through the Lens of Formation [Abstract], 19 Clinical Law Review 83-114 (2012).
• Rodney D. Chrisman, Can a Merchant Please God?: The Church's Historic Teaching On the Goodness of Just Commercial Activity As a Foundational Principle of Commercial Law Jurisprudence, 6 Liberty University Law Review 453-494 (2012).

Developments From The Vatican Last Week

Several developments of interest came from the Vatican last week:

As reported by AP, Pope Benedict XVI met in the Vatican prison on Saturday with his former butler Paolo Gabriele and granted him a pardon. Gabriele had been sentenced to 18 months in jail for stealing the Pope's private correspondence, some of which were published in a best-selling book by Italian journalist Gianluigi Nuzzi. (See prior posting.)

On Saturday, the Vatican announced the appointment of Boston canon lawyer Rev. Robert W. Oliver as promoter of justice for the Congregation of the Doctrine of Faith, the Vatican office charged with protecting church doctrine. As reported by the Boston Globe, this makes Oliver the Vatican's chief prosecutor of priests charged with sexual abuse of minors. He succeeds Monsignor Charles Scicluna who has been named auxiliary bishop in Malta. The director of Survivors Network of those Abused by Priests criticized Oliver's appointment, saying that he lacks credibility because he never publicly called for the ouster of Boston's Cardinal Bernard Law.

On Friday, the Pope delivered his Christmas greetings to the Roman Curia. (Full text). As reported by Catholic World, while the Pope's extensive remarks were widely headlined as an attack on same-sex marriage, in fact he spoke in broader philosophical terms. Focusing on "a new philosophy of sexuality" in the western world, he said in part:

According to this philosophy, sex is no longer a given element of nature, that man has to accept and personally make sense of: it is a social role that we choose for ourselves, while in the past it was chosen for us by society.... People dispute the idea that they have a nature, given by their bodily identity, that serves as a defining element of the human being. They deny their nature and decide that it is not something previously given to them, but that they make it for themselves.... When the freedom to be creative becomes the freedom to create oneself, then necessarily the Maker himself is denied and ultimately man too is stripped of his dignity as a creature of God....

Recent Prisoner Free Exercise Cases

In Moussazadeh v. Texas Department of Criminal Justice, (5th Cir., Dec. 21, 2012), the 5th Circuit, in a 2-1 decision, held that a Texas prison inmate seeking access to kosher food had adequately exhausted his administrative remedies and, as a matter of law, had demonstrated the sincerity of his religious beliefs. It also concluded that charging plaintiff for his kosher food, while it was available at a different facility without cost to prisoners, imposes a substantial burden on religious exercise. It remanded plaintiff's RLUIPA claim for determination as to compelling interest and least restrictive means.

In Stewart v. Beach, (10th Cir., Dec. 18, 2012) a Rastafarian inmate objected to a prison rule that required him to cut his hair. The 10th Circuit held that correctional officers had qualified immunity as to the inmate's free exercise claim, and that individual capacity claims are not allowed under RLUIPA.

In Reed v. Hardy, 2012 U.S. Dist. LEXIS 179325 (ND IL, Dec. 19, 2012), and Illinois federal district court allowed an inmate to move ahead with free exercise and RLUIPA objections to being forced to choose between yard time and going to communal religious services.

In Scott v. Erdogan, 2012 U.S. Dist. LEXIS 178908 (MD PA, Dec. 18, 2012), a Pennsylvania federal district court adopted in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 179482, Nov. 19, 2012) and permitted a Muslim inmate to move ahead with his free exercise and RLUIPA claims for injunctive relief against the prison's Muslim chaplain who he alleged infringed his right to practice his orthodox Sunni religion in various ways by funneling him to the Wahabi sect.

In Bedier v. United States, 2012 U.S. Dist. LEXIS 178897 (CD CA, Dec. 17, 2012), a California federal district court dismissed as moot a suit by plaintiff, who has now been deported to Lebanon, complaining that while he was held pending removal he was denied a halal or vegetarian diet and was denied the ability to pray. Injunctive relief was denied because plaintiff is no longer being detained and is unlikely to be held again in the future.

In Laurensau v. Romarowics, 2012 U.S. Dist. LEXIS 179788 (WD PA, Dec. 20, 2012), a Pennsylvania federal magistrate judge rejected an inmate's complaints about being taken off the kosher diet plan, finding that he lacked a sincerely held religious belief requiring kosher food.

In Jalloh v. Mullendore, 2012 U.S. Dist. LEXIS 179677 (D MD, Dec. 19, 2012), a Maryland federal district court permitted plaintiff to proceed with his claims that while he was a pre-trial detainee he was
denied access to Muslim services, programming and religious articles, while other religions were treated differently.

In Trapp v. Clarke, 2012 Mass. Super. LEXIS 311 (MA Super. Ct., Sept. 26, 2012), a Massachusetts state trial court held that prison authorities violated a previous settlement agreement, the Massachusetts constitution and RLUIPA when they stopped providing kinnick-kinnick with tobacco and substituted tobacco free kinnick-kinnick, and when they closed a sweat lodge at one facility because of health concerns of exposing staff and inmates to smoke. The court upheld closure of a second sweat lodge and a ban on colored beads.

In Clark v. Cambria County Prison, 2012 U.S. Dist. LEXIS 179789 (WD PA, Dec. 20, 2012), a Pennsylvania federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 181044, Nov. 15, 2012) and dismissed an inmate's complaint that his prison did not have separate Jehovah's Witness services.

In Dowdy-El v. Caruso, 2012 U.S. Dist. LEXIS 180025 (ED MI, Dec. 20, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 181136, Aug. 15, 2012), and granted class certification to all Muslim inmates in Michigan who are denied the ability to participate in Jum'ah services because of a conflicting work, school or similar detail; and all Muslim inmates in Michigan who have been denied a halal diet.

Preliminary Injunction Denied In Factional Dispute In Ravidassia Temple

In Ram v. Lal, 2012 U.S. Dist. LEXIS 179958 (ED NY, Nov. 21, 2012), a New York federal magistrate judge denied a preliminary injunction in a suit between competing factions of a Ravidassia Temple in Woodside, New York.  Among the disputes between the factions is the question of whether Ravidassia is a separate religion or is a sub-group within the Sikh religion.  The suit grows out a a previous lawsuit filed in state court in which the state court disbanded the Management Committee of the Temple elected in 2009 and appointed a receiver to manage the Temple until a new election was held. Among other things, the receiver had the power to determine who could vote in the new election.  Plaintiffs complain that Defendants' faction has been recruiting non-Ravidassia-- in particular, Sikhs who are not members of the Chammar/ Addharmi caste-- to become Temple members in order to bolster their chances of winning the election. The court held that members of the Defendants' faction were not state actors, and so no 1st Amendment claim lies against them.  Plaintiffs failed to name the receiver or the state court as parties to the action. Moreover the injunction sought-- barring any actions contrary to the Temple's Bylaws-- was overly broad.

Mosque Can Move Ahead With Suit Challenging Denial of Conditional Use Permit

In Islamic Center of Western Suburbs v. County of DuPage, (ND IL, Dec. 18, 2012), an Illinois federal district court refused to dismiss claims by an Islamic Center that its rights under RLUIPA, the 1st and 14th Amendments and the Illinois constitution were infringed. The suit stemmed from the denial of Plaintiff's application for a conditional use permit for a mosque. However plaintiff's motion to strike various defenses asserted by the county was for the most part denied. The suit seeks damages, injunctive and declaratory relief. (See prior related posting.)

Iowa Supreme Court: Firing Attractive Female Employee Because Of Wife's Objections Is Not Sex Discrimination

In Nelson v. Knight, (IA Sup. Ct., Dec. 21, 2012), the Iowa Supreme Court upheld a decision by dentist James Knight to fire Melissa Nelson, a dental assistant who had worked for him for over ten years, after Knight's wife became concerned that Nelson posed a threat to their marriage. Knight was becoming personally attracted to Nelson and he feared he would eventually try to have an affair with her if he did not fire her. Knight reached the decision to fire Nelson after he and his wife consulted with the senior pastor of their church. Knight arranged for another pastor from the church to be present and witness the conversation in which he fired Nelson, and also a subsequent conversation he had with Nelson's husband about the firing.  The state Supreme Court held that the firing did not amount to gender discrimination. AP reports on the decision.

Supreme Court Asked To Decide On Holding Of Public School Commencements In Churches

The Becket Fund announced yesterday that it has filed a petition for certiorari (full text) with the U.S. Supreme Court seeking review of the 7th Circuit's decision in Doe 3 v. Elmbrook School District.  In the case, the 7th Circuit in a 7-3 en banc decision held that two Wisconsin high schools violated the Establishment Clause when they regularly held their graduation ceremonies in the sanctuary of a non-denominational evangelical Christian church. (See prior posting.) The Brookfield Patch reports on the filing of the cert. petition.

Congress Passes Defense Authorization Act With Provisions On Chaplains and Conscience Rights

Congress this week passed HR 4310, the 2013 National Defense Authorization Act, when the House and Senate both agreed to the version of the bill set out in the Conference Committee Report. The 1590-page bill contains provisions impacting military chaplains and conscience rights of members of the military.

Section 508 of the Act (adding 10 USC Sec. 8039) creates the position of Chief of Chaplains in the Air Force.

Section 533 of the Act protects conscience rights of military members and chaplains. It provides:

SEC. 533. PROTECTION OF RIGHTS OF CONSCIENCE OF MEMBERS OF THE ARMED FORCES AND CHAPLAINS OF SUCH MEMBERS. 

(a) PROTECTION OF RIGHTS OF CONSCIENCE.—

(1) ACCOMMODATION.—The Armed Forces shall accommodate the beliefs of a member of the armed forces reflecting the conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

(2) DISCIPLINARY OR ADMINISTRATIVE ACTION.—Nothing in paragraph (1) precludes disciplinary or administrative action for conduct that is proscribed by chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), including actions and speech that threaten good order and discipline. 

(b) PROTECTION OF CHAPLAIN DECISIONS RELATING TO CONSCIENCE, MORAL PRINCIPLES, OR RELIGIOUS BELIEFS.—No member of the Armed Forces may—

(1) require a chaplain to perform any rite, ritual, or ceremony that is contrary to the conscience, moral principles, or religious beliefs of the chaplain; or 

(2) discriminate or take any adverse personnel action against a chaplain, including denial of promotion, schooling, training, or assignment, on the basis of the refusal by the chaplain to comply with a requirement prohibited by paragraph (1). 

(c) REGULATIONS.—The Secretary of Defense shall issue regulations implementing the protections afforded by this section.

God and Country Blog has more on Sec. 533.

As reported by Politico, last month the White House threatened a veto over various other provisions in the Senate version of the bill, including limitations on transfer of prisoners from Guantanamo Bay. (Statement by Executive Office of the President.) However, National Journal now reports that a Presidential veto is highly unlikely.

9th Circuit Bars Enforcement of Reparative Therapy Ban Pending Appeal

As reported by AFP, the U.S. 9th Circuit Court of Appeals yesterday issued an injunction in Pickup v. Brown barring enforcement pending an appeal, of California's ban on so-called reparative therapy for minors.  The federal district court in the case held that the state's ban on sexual orientation change efforts does not impact 1st Amendment free expression since healthcare treatment is not expressive conduct. (See prior posting.) [Corrected-- earlier version of posting had incorrect circuit.]

District Court Modifies Wilmington Diocese Bankruptcy Order, Eliminating Ban On Payments To Accused Priests

In an appeal of the bankruptcy court's confirmation of the Chapter 11 reorganization plan of the Catholic Diocese of Wilmington, a Delaware federal district court has eliminated the bankruptcy court's order banning payment of any salaries, employment benefits, medical benefits, charity payments, pensions or other financial benefits to a list of nine removed priests. The appeal was filed by one of the nine priests, Kenneth Martin. In Martin v. Catholic Diocese of Wilmington, Inc., (D DE, Dec. 18, 2012), the Delaware federal district court held that a crucial letter by now-deceased Bishop Salterelli was hearsay that was wrongly admitted into evidence.  The letter, on which the list of priests denied benefits was based, represented in a conclusory fashion the names of priests as to whom Saltarelli had confirmed sexual abuse allegations. The court said in part:

In this case, the bankruptcy court imposed a permanent injunction on third parties without referring to any evidentiary requirements ... and without requiring the Diocese (or the Official Committee or the Ad Hoc Committee) to bear any burden of proof in that regard.  Moreover, the record demonstrates that the imposition of the Injunction will have no impact on the property of the estate, as the Diocese has represented, through its agent under oath, that it has no intention of providing any prospective benefits to appellant or other similarly situated individuals....

In weighing the public interest, the court does not question the motivations behind the imposition of the Injunction.  However, good intentions cannot trump the rule of law and the fundamental requirement that there be a nexus established between the wrongs alleged and the remedy imposed.  No such nexus exists of record,  as there is no indication at bar that appellant was the subject of any of the survivor claims actually at issue in the Diocese's chapter 11  proceedings, and appellant was not given the opportunity to contest his inclusion as a subject of the Injunction.

The Wilmington News Journal reports on the decision.

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.