Vatican Financial Authority Issues First Annual Report

The Vatican Financial Intelligence Authority Authority (Autorità di Informazione Finanziara [AIF]) today issued its Annual Report for 2012-- its first full year of operations. Reuters pointed out important aspects of today's announcements:

The head of the Vatican's Financial Intelligence Authority (FIA), presenting its first annual report, also said it would soon have stronger supervisory powers over the Vatican's scandal-plagued bank, the Institute for Works of Religion (IOR), dubbed the world's most secretive bank by Forbes magazine.

The Vatican is trying to meet international standards to combat the financing of terrorism, money laundering and tax evasion, but the European anti-money laundering committee, Moneyval, said in July that the IOR still had some way to go. The FIA is due to report back in December.

During 2012, AIF received 6 suspicious activities reports, and sought additional information on 3 of them. Two of the cases were referred to the Promoter of Justice, the Vatican's prosecutor. The Annual Report says: "Given the nature and small size of the economic and financial system of the Vatican City State, and the presence of a public regime that does not allow the presence of private operators, data show an effective system for reporting suspicious activities by the subjects obliged to do so." (See prior related posting.)

Court Says Mother's Objections To Immunizations Were Not Religiously Motivated

In Check v. New York City Department of Education, 2013 U.S. Dist. LEXIS 71124 (ED NY, May 20, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 71223, March 22, 2013) and refused to issue a preliminary injunction to require admission of plaintiff's 5-year old daughter to school without required immunizations.  The court rejected plaintiff's claim that she is entitled to a religious exemption under the New York statute (Pub. Health L. Sec. 2164(9)), and instead concluded that the mother's "mistrust of vaccinations is driven by health reasons and not religious conviction." The court said in part:

To be sure, Plaintiff often refers to God and religion in describing her aversion to immunizations.... Indeed, this court has no doubt that Plaintiff is a deeply religious woman whose religion plays an important, and even central, role in her life. However, not every belief held by a religious person is a religious belief.... Plaintiff's desire to protect her child from what she believes will cause her harm is undeniable, but it does not justify a religious exemption.....

The Staten Island Advance reports on the decision.

5th Circuit Rejects Habeas Petition Challenging Law Making Sex Non-Consensual With Clergy Spiritual Adviser

In Smith v. Thaler, (5th Cir., May 21, 2013), the U.S. 5th Circuit Court of Appeals denied a habeas corpus petition filed by a non-ordained pastor who had been convicted of sexual assault under a Texas statute that makes sexual relations non-consensual when the actor is a clergyman who causes the other person to participate by exploiting the other person's emotional dependency on the clergyman as a spiritual adviser. The court held it was reasonable for state courts to conclude that the statute does not implicate protected sexual conduct and that the statute is not unconstitutionally vague in requiring a determination that someone acted as a clergyman who knowingly exploited the victim’s emotional dependency. The court also concluded that it was reasonable for state courts to reject the claim that the statute violates the Establishment Clause by fostering excessive entanglement.

4th Circuit Hears Oral Arguments Second Time In Liberty University's Affordable Care Act Challenge

Last Friday, in the second time the case is before the court, the U.S. 4th Circuit Court of Appeals heard oral arguments in Liberty University, Inc. v. Lew.  The case is now a religious freedom challenge to the contraceptive coverage mandate, as well as a broader challenge to the Affordable Care Act. An audio recording of the oral arguments is now available on the 4th Circuit's website. Politico reports on the oral arguments. Originally the case was filed before the contraceptive coverage mandate was promulgated.  The suit then claimed that the ACA more broadly permits federal funding of abortions and that it violates the Establishment Clause and equal protection clause because its narrow religious exemptions favor certain religious adherents. The 4th Circuit dismissed the case, holding that the Anti-Injunction Act barred the lawsuit, and the Supreme Court denied certiorari. Plaintiffs, however asked for a rehearing on the decision to deny review after the Supreme Court  in National Federation of Independent Business v. Sebelius held that the Anti-Injunction Act does not bar a challenge to the ACA. The Supreme Court granted the rehearing, vacated it prior denial of certiorari and remanded the case to the 4th Circuit for further consideration in light of the National Federation of Business case. (See prior posting.)

State Department's 2012 International Religious Freedom Report Released; New Envoy To Monitor Anti-Semitism Announced

Yesterday, after comments by Secretary of Statse John Kerry, Suzan Johnson Cook, U.S. Ambassador-at-Large for International Religious Freedom, released the U.S. State Department's 2012 International Religious Freedom Report. The Report assesses the situation county-by-country around the world. The Report's Executive Summary outlines "some common themes regarding the status of religious freedom around the world":

Laws and policies that impede the freedom of individuals to choose a faith, practice a faith, change their religion, tell others about their religious beliefs and practices, or reject religion altogether remain pervasive.....

The use of blasphemy and apostasy laws continued to be a significant problem, as was the continued proliferation of such laws around the world. Such laws often violate freedoms of religion and expression and often are applied in a discriminatory manner....

This report also documents a continued global increase in anti-Semitism. Holocaust denial and glorification remained troubling themes, and opposition to Israeli policy at times was used to promote or justify blatant anti-Semitism....

In addition to anti-Semitism, intolerance by members of society towards those of other faiths besides Judaism was a growing problem, and all too often evolved into violence. While Christians were a leading target of societal discrimination, abuse, and violence in some parts of the world, members of other religions, particularly Muslims, suffered as well. Societal groups targeted members of minority branches of Islam and smaller faith groups, often those considered by the majority to be heretical or “foreign.”...

In many parts of the world... [g]overnments exacerbated religious tensions... fostering a climate of impunity, and failing to ensure the rule of law. In several instances of communal attacks on members of religious minorities and their property, police reportedly arrested the victims of such attacks....

In connection with release of the Report, Secretary of State Kerry also announced that Ira Forman will serve as the Special Envoy to Monitor and Combat Anti-Semitism.

Alaska's Compelling Interest In Limiting Yupik Eskimos' Salmon Fishing Trumps Free Exercise Claim

In an Alaska state trial court yesterday, acting Alaska District Court Judge Bruce G. Ward ruled in a 7-page opinion that Yupik Eskimos may not assert free exercise defenses to citations against them for illegally fishing for King Salmon.  The judge held that while subsistence fishing by the Alaska Natives may well be the practice of their religion, the state has a compelling interest in placing limitations on the taking of Chinook salmon. According to yesterday's Alaska Dispatch, the court-- distinguishing a 1979 Alaska Supreme Court decision-- held:

based on the testimony of the fisheries biologists present during the evidentiary hearing, that the natural consequences of allowing the unfettered taking of Chinook salmon under the religious free exercise exception through subsistence harvest urged by the defendants would result in ... the decimation of the species by over fishing.

In a colloquy with defense counsel, the Judge Ward said: "This court understands there will be an appeal, and frankly I think there should be."  Some 22 defendants are standing trial on charges growing out of a "fish-in" protest last year. (Background.)

UPDATE: Alaska Native News reports: "Many of the fishermen were found guilty on Monday when proceedings re-started. They were given $500 fines with $250 suspended and one -year probation."

Science Education Group Issues "Scorecard" On 2013 State Anti-Evolution Proposals

The National Center for Science Education yesterday issued their "scorecard" on state legislative proposals this year that are anti-evolution or anti-climate change. It reviews activity on "anti-science" bills in 9 states-- a total of 10 bills and one resolution.

This Year's Dearborn Arab International Festival Is Canceled

For the past 18 years, the Arab American Chamber of Commerce has sponsored an Arab International Festival in Dearborn, Michigan.  In recent years the festival has sparked confrontations between Christian proselytizers and Muslim attendees, some of which have led to extensive litigation.  This year the Festival was to be moved to a local park that police would be able to better control-- particularly in light of anti-Muslim proselytizers that were planning to attend. (See prior posting.) Yesterday the Arab American Chamber of Commerce announced that it was canceling this year's Festival in order to give organizers a year to ensure a quality event at the new location. Macomb County Advisor & Source reported on the Chamber's decision.

Supreme Court Grants Certiorari In City Council Invocation Case

The U.S. Supreme Court today agreed to weigh in on the extensively litigated issue of opening city council meetings with prayer.  It granted certiorari in Town of Greece, NY v. Galloway, (Docket No. 12-696, cert. granted 5/20/2013). (Order List). In the case, the 2nd Circuit created an extremely fact-dependent test for determining the constitutionality of opening meetings of legislative bodies (here the town board) with prayer. It concluded that in this case, "an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity." (See prior posting.) Scotus Blog's case page has links to all the certiorari stage briefs. The town's petition for certiorari framed the question presented as: "Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity."

Britain Releases 2011 Census Data On Religious Affiliation and Characteristics of Population By Religion

Last week, Britain's Office for National Statistics released new data from the 2011 census on religious affiliation for residents of England and Wales. The data on numbers and median age shows 33.2 million Christians, 14 million with no religion, 2.7 million Muslims, 817 thousand Hindus, 423 thousand Sikhs, 263 thousand Jews, and 248 thousand Buddhists. Other tables show religion by ethnicity, religion by country of birth, and religion by economic activity. The Dalles Chronicle has further analysis of the data.

Recent Articles of Interest

From SSRN:

• Anissa Helie and Marie Ashe, Multiculturalist Liberalism and Harms to Women: Looking Through the Issue of 'The Veil', (19 U.C. Davis Journal of International Law & Policy 1 (2012), pp. 1-65).
• David H. Schraub, Our Divine Constitution, (44 Loyola University Chicago Law Journal 1201 (2013)).
• Peter G. Danchin, The Tangled Law and Politics of Religious Freedom, (Santa Clara Journal of International Law, Vol. 10, pp. 73-91, 2012).
• George C. Christie, Judicial Decision Making in a World of Natural Law and Natural Rights, (Villanova Law Review, Vol. 57, No. 5, 2012). 
• Engy Abdelkader, 'Savagery' in the Subways: Anti-Muslim Ads, the First Amendment, and the Efficacy of Counterspeech, (Asian American Law Journal at Berkeley Law (2013, Forthcoming)).
• Dawubder S. Sidhu, Lessons on Terrorism and 'Mistaken Identity' from Oak Creek, with a Coda on the Boston Marathon Bombings, (113 Columbia Law Review Sidebar 76 (2013)). 
• Leonid Sykiainen, The Arab Spring and Islamic Legal Thought, (Higher School of Economics Research Paper No. WP BRP 17/LAW/2013).

From SmartCILP:

• Jonathan C. Augustine, The Faith That Divides Us: Lines of (In)division Between Religion and Politics, (Reviewing Mike Slaughter, et al., Hijacked: Responding to the Partisan Church Divide), 22 Southern California Review of Law & Social Justice 37-52 (2012).
• Anthony Michael Kreis and Robin Fretwell Wilson, The Overlooked Benefit of Minimalism: Perry v. Brown and the Future of Marriage Equality, 37 N.Y.U. Review of Law & Social Change 35-47 (2013).
• Brian M. McCall, Can a Pluralistic Commonwealth Endure? (Reviewing Thaddeus J. Kozinski, The Political Problem of Religious Pluralism and Why Philosophers Can't Solve It), 11 Georgetown Journal of Law & Public Policy 45-61 (2013). 

Recent Prisoner Free Exercise Cases

In Rich v. Secretary, Florida Department of Corrections, (11 Cir., May 14, 2013), the 11th Circuit sent back for trial a Jewish prisoner's challenge under RLUIPA to Florida's refusal to provide him with kosher meals.

In Watkins v. Rogers, (10th Cir., May 17, 2013), the 10th Circuit dismissed a damage claim by a former federal prisoner who alleged that when he was moved to a federal transfer center a correctional officer with whom he had a history of disputes refused to serve him a common fare or vegetarian diet at one meal.

In Spivey v. Love, 2013 U.S. Dist. LEXIS 67530 (SD IL, May 10, 2013), an Illinois federal district court adopted in part a magistrate's recommendation (2013 U.S. Dist. LEXIS 68478, March 21, 2013) and permitted an inmate  who complained that he had been unable to change his records to correctly reflect his religion as Reform Judaism to move forward against some of the defendants he named.

In Talley v. Womack, 2013 U.S. Dist. LEXIS 67442 (WD KY, May 10, 2013), a Kentucky federal district court dismissed a Muslim inmate's complaint that corrections officers on one occasion told his friend to leave Muslim religious services.

In Colletti v. Arpaio, 2013 U.S. Dist. LEXIS 67686 (D AZ, May 10, 2013), an Arizona federal district court dismissed an inmate's complaint that he was not permitted to keep his religious medallion.

In Porter v. Wegman, 2013 U.S. Dist. LEXIS 67959 (ED CA, May 9, 2013), a California federal magistrate judge permitted an inmate who is a member of the House of Yahweh religion to move ahead with his free exercise, RLUPA and equal protection claims growing out of alleged  denials of reasonable accommodations for observing HOY Passover and of access to the Jewish Kosher Diet Program. UPDATE: The court adopted the magistrate's recommendations at 2013 U.S. Dist. LEXIS 100835, July 18, 2013.

In Montgomery v. Hall, 2013 U.S. Dist. LEXIS 69213 (SD NY, May 15, 2013), a New York federal magistrate judge held that insofar a a Muslim inmate was asserting a free exercise complaint about being strip searched, there was no showing of a burden on his religious beliefs.

In Munoz v. Tilton, 2013 U.S. Dist. LEXIS 69330 (ND CA, May 15, 2013), a California federal district court dismissed as moot a complaint by an inmate that at his former prison facility he was not allowed to have Christian CDs that had been mailed to him because they did not come from an approved vendor.

In Guillory v. Ellis, 2013 U.S. Dist. LEXIS 68752 (ND NY, May 14, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 69183, April 3, 2013) and permitted an inmate to move ahead with his free exercise and RLUIPA complaints that on two occasions he was not permitted to attend religious services for invalid reasons, including retaliation for filing a grievance. On another occasion plaintiff's meeting with rabbis was cut short. Plaintiff's equal protection claim was dismissed without prejudice.

In Lisasuain v. Hillsborough County Department of Corrections, 2013 U.S. Dist. LEXIS 70403, (D NH, May 17 2013), a New Hampshire federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 70425, May 6, 2013), and dismissed a complaint by an inmate that while he was on suicide watch he was allowed access to his Bible and rosary beads only one hour per day.

In  Weathers v. Rock, 2013 U.S. Dist. LEXIS 69828 (ND NY, May 16, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 70058, April 23, 2013), and refused to dismiss a Jewish inmate's claim that his rights were violated when authorities refused to provide him with seder meals at Passover in his cell in the special housing unit, even if he was not allowed to attend seders with other inmates.

Appeals Court Dismisses Suit Alleging Defamation In Church Annulment Proceedings

A Kansas appellate court, in a 2-1 decision, affirmed the dismissal of a suit brought by plaintiff against his former wife alleging that she made defamatory statements to a Catholic Archdiocesan Tribunal in seeking an annulment of their marriage.  The annulment petition claimed plaintiff had been diagnosed as bipolar.  Purdum v. Purdum, (KA Ct. App., May 17, 2013), produced three separate opinions.  Judge Green, while rejecting the trial court's "absolute privilege" rationale, dismissed on Establishment Clause grounds holding that moving forward with the case would excessively entangle the court with the Archdiocese's annulment proceedings.

Judge Bruns concurred, holding that the church autonomy doctrine-- also known as the ecclesiastical abstention doctrine-- applies and requires dismissal of the case. He said in part:

In order for authorities within the Roman Catholic Church to perform their duties in an ecclesiastical annulment proceeding, I believe it is imperative that the parties be free to allege their version of the facts with candor and without fear of being sued in secular courts.

Judge Atcheson dissented, arguing that the defenses put forward are not jurisdictional, and that the case has been dismissed at too early a stage.  He also argued that this case does not threaten undue entanglement:

Purdum alleges that the petition for annulment contains a factual representation about him that is false and defamatory. The representation has nothing to do with his religious beliefs or the Catholic Church's ecclesiastical doctrine or views.... A court or a jury would not be drawn into a theological debate or an evaluation of annulments or other Catholic ritual in assessing the statement's falsity or its defamatory nature. In other words, the forum of publication—as part of a request to the Archdiocese for an annulment—is immaterial to the content of the statement that Purdum says makes it libelous.

Afghan Parliament Tables Bill Protecting Women After Objections From Islamic Legislators

Today's Deutsche Welle reports that in Afghanistan's Parliament, lawmakers have withdrawn a bill that would have instituted a number of protections for women.  The action came after  religious parties complained that the proposed law was un-Islamic.  The law would have set a minimum age for marriage for girls, outlawed domestic violence, supported shelters for women who were victims of domestic abuse, barred prosecution of women for rapes committed against them, and banned "baad" (a practice of trading a young girl to settle a family dispute).  Conservative member of parliament Khalil Ahmad Shaheedzada said that the law reflected values not applicable in Afghanistan, that it might encourage promiscuity and give girls ideas about running away from home. In 2009, President Hamid Karzai had promulgated a Law on Elimination of Violence Against Women.  The bill in Parliament was an attempt to assure that those protections could not be reversed by a future president.

French President Signs Same-Sex Marriage Bill After Constitutional Council Upholds It

The New York Times reports that in France today, President Francois Hollande signed into law Projet de Loi Ouvrant le Mariage aux Couples de Personnes de Même Sexe, making France the 14th country to legalize same-sex marriage. Hollande's action follows a decision handed down yesterday by France's Constitutional Council rejecting constitutional challenges to the new law. (Full text of decision in French; Council's press release in French). Parliament passed the law last month. (See prior posting.)

Catholic Diocese Settles Suit Complaining About Priest's Statements During Confession

The Concord Monitor reports today that the Catholic diocese of Manchester has settled a breach of contract lawsuit filed against it in February in which a 14-year old boy's parents complained about statements made by a priest to their son during confession at his Catholic school. The suit claims the school failed to provide the safe learning environment that was promised.  In the settlement, the diocese will pay only $2000, which will be used for the boy's future educational costs. According to the paper's report:

In the lawsuit filed at Hillsborough County Superior Court, [the parents] accused [Rev. George] Desjardins of asking the boy whether he had “engaged in watching pornographic material and masturbating.” When the boy said that he hadn’t and that he had a girlfriend, Desjardins told the boy to use “rubbers” and warned him to be careful because a girl can “yell ‘rape’ ” during sex, the lawsuit continued.

The parents also accused Desjardins, who is an assisting retired priest at Christ the King Parish, of attempting to grab the boy twice as the student tried to avoid him.  [A diocese spokesman] has said that physical contact was nothing more than a handshake after Mass....

Even though school officials did not believe that the priest's remarks amounted to misconduct, Desjardins took a leave of absence once the lawsuit was filed.

Rabbi's Sex Assault Conviction May Encourage Others In New Jersey Orthodox Community To Bring Complaints To Civil Authorities

AP reported earlier this week that a guilty plea in the sexual assault trial of former yeshiva teacher Rabbi Yosef Kolko "may be a watershed for the prosecutor's office and the Orthodox Jewish community in Lakewood [New Jersey]."  The plea came Monday, part way through Kolko's trial, after two others claiming to have been abused by Kolko contacted the prosecutor's office last week. The Orthodox Jewish community in Lakewood has been reluctant to report sex abuse complaints to civil authorities, preferring instead to handle them through rabbis and rabbinical courts. (See prior posting.) In this case, the young victim's family had been ostracized by the community for taking the case to civil courts. Senior Assistant Prosecutor Laura Pierro said she hoped that this trial would open the door to others in the community cooperating with prosecutors.

Convictions Handed Down In Securities Fraud Conspiracy That Used Ministers To Sell Stock

The U.S. Attorney's Office for the Western District of Missouri announced Wednesday that 5 defendants were convicted in federal court in a $10.2 million securities fraud conspiracy involving the use of clergy to sell shares in Petro America Corporation. Nine other plead guilty in the conspiracy. According to the press release:

The defendants used religious language in their pitches and often recruited through churches. [Defendant] Hawkins cultivated relationships with numerous ministers, whom he dubbed the Ministers Alliance. The Ministers Alliance was a group of about 15 ministers (most of whom resided in the Kansas City area) who supported and promoted Petro America. He gave them white fedora hats and millions of Petro shares, which he encouraged them to sell secretly, accepting kick-backs from the proceeds. Members of the Ministers Alliance sold Petro shares to their congregants and others. The Ministers Alliance frequently met at restaurants and participated in weekly conference calls with hundreds of investors in dozens of states.

Louisiana Appeals Court Upholds Election, Injunctive Relief In Baptist Church Dispute

In Thornton v. Carthon, 2013 La. App. LEXIS 923 (LA App., May 15, 2013), a Louisiana state appeals court affirmed the trial court's decision confirming the court-ordered election of the board of trustees of Shreveport's Baptist Temple Church.  Some of the newly elected trustees had been attempting to call a membership meeting to oust Rev. Alvin Carthon as the church's pastor.  The trial court found, and the appeals court agreed, that a membership meeting purporting to vote Carthon out had been premature, but that Carthon should be enjoined from entering the church without court approval and from acting on behalf of the church in any natter. Affirming the trial court's judgment, the appeals court said: "The court's rulings sanctioning the newly-elected Board and holding Rev. Carthon's immediate participation in abeyance were clearly aimed at allowing the Board and church membership time to deliberate and choose the ministerial leadership for the church."

Kansas City Diocese Settles A Child Pornography Lawsuit

The Kansas City Star reported that on Tuesday the Kansas City-St. Joseph (MO) Catholic Diocese has agreed to settle a child pornography lawsuit filed against it, Bishop Robert Finn and Catholic priest Shawn Ratigan, for $600,000. The suit was brought by parents of a girl who claimed that Ratigan took sexually explicit photos of the girl when she was 2 years old, and distributed them over the Internet.  Ratigan plead guilty to child pornography charges last year, and is awaiting sentence. Bishop Finn was found guilty last year on misdemeanor charges of failing to report suspicion of child abuse. (See prior posting.)

In the civil suit settled this week, the only claim the court permitted to move ahead was one alleging that Bishop Finn and the diocese possessed child pornography by viewing and making copies of Ratigan's photos.  The court must still approve the structure of the settlement, which will be covered by insurance. The diocese has been named in dozens of priest sexual abuse lawsuits, including three others involving Ratigan.

Florist Counter-Sues State AG Over Right To Refuse To Create Floral Arrangements For Same-Sex Wedding

As previously reported, last month the Washington state attorney filed a consumer protection lawsuit in state court against a retail florist for refusing, because of her religious opposition to same-sex marriage, to furnish floral arrangements for a customer's same-sex wedding. Now defendants Arlene's Flowers, Inc. and its owner Barronelle Stutzman, have not merely filed an answer, but at the same time filed a third-party complaint, counter-suing the state attorney general for violating the shop owner's free speech and free exercise rights under the U.S. and Washington state constitutions. The third party complaint (full text) in State of Washington v. Arlene's Flowers Inc., (WA Super Ct., filed 5/16/2013) alleges in part:

Barronelle  is being sued, and she fears future suits by the Attorney General, for following her conscience in her work, which has resulted in a chilling effect in the exercise of her constitutional rights and a chill in the exercise of constitutional rights by other small business owners in Washington.

Alliance Defending Freedom issued a press release announcing the filing of the counter-suit.

In Wake of IG Report, Evangelical Leaders Charge IRS Also Dealt Improperly With Religious Non-Profits

As widely reported, this week the Treasury Department's Inspector General for Tax Administration issued a report (full text) concluding that the Internal Revenue Service used inappropriate criteria in reviewing applications of Tea Party and similar conservative organizations for tax exempt 501(c)(4) status.  Now, two well-known Christian evangelical leaders are claiming that the IRS also dealt improperly with certain conservative religious non-profits.

In a May 14 press release, Dr. James Dobson said that Family Talk Action Corp., formed to provide Christ-oriented advice and education and speak on cultural issues that affect the family, filed its Form 1024 application for 501(c)(4) status in September 2011.  In March 2013 the group still had not received its determination letter. The attorney who filed the application had a conversation with the IRS reviewing agent. According to the press release:

Ms. Medley [the IRS agent] responded saying, I don't think your Form 1024 ... will be granted because Family Talk Action is "not educational" because it does not present all views.  She continued, saying that Family Talk Action sounded like a "partisan right-wing group" because, according to Ms. Medley, it only presents conservative viewpoints.  She then added, "you're political" because you "criticized President Obama, who was a candidate."

Opposing Views has more on the case.

Meanwhile, as reported by CNN, on May 14 prominent evangelical leader Franklin Graham wrote President Obama (full text of letter) complaining of tax audits last year.  After the Billy Graham Evangelistic Association ran full page ads supporting North Carolina's proposed Marriage Amendment, the Association as well as an affiliated group, Samaritan's Purse, were notified by IRS that a review would be conducted of their tax status as Section 501(c)(3) organizations for the 2010 tax year. Franklin wrote:

I do not believe that the IRS audit of our two organizations last year is a coincidence-- or justifiable.

UPDATE: On May 17, the Thomas More Society (TMS) announced that it has submitted 150 pages of materials (full text) to the House Ways and Means Committee which, according to TMS, shows IRS harassment of pro-life organizations.

6th Circuit Denies Asylum To German Family Claiming Persection of Home Schoolers

In a case that has been closely followed by home-school advocates, the U.S. 6th Circuit Court of Appeals this week denied asylum to a German family that claimed persecution because of Germany's ban on home schooling.  As reported by RNS, the evangelical Christian family prefers home schooling largely for religious reasons. In Romeike v. Holder, (6th Cir., May 14, 2013), in an opinion by Judge  Sutton, the court said in part:

When the Romeikes became fed up with Germany’s ban on homeschooling and when their prosecution for failure to follow the law led to increasingly burdensome fines, they came to this country with the hope of obtaining asylum. Congress might have written the immigration laws to grant a safe haven to people living elsewhere in the world who face government strictures that the United States Constitution prohibits. But it did not. The relevant legislation applies only to those who have a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). There is a difference between the persecution of a discrete group and the prosecution of those who violate a generally applicable law. As the Board of Immigration Appeals permissibly found, the German authorities have not singled out the Romeikes in particular or homeschoolers in general for persecution.

Judge Rogers wrote a short concurring opinion in addition to joining the majority opinion.

Georgia Governor Orders Gideon Bibles Returned To State Park Cabins

AP reports today on the controversy that has arisen in the state of Georgia over whether it is appropriate to permit Gideon Bibles to be placed in rooms of cabins at state-owned resorts. Atheist Ed Buckner complained about the Bibles after his family visited a state part to celebrate his son's birthday. In response, officials removed the Bibles while the state attorney general looked into the matter. The attorney general soon issued an opinion saying that the Bibles are allowable, and yesterday Gov.Nathan Deal ordered them all returned to cabins in the state parks. The governor issued a press release saying:

Out of an abundance of caution to avoid potential litigation, the commissioner removed the Bibles from rooms – though they were still available on site – after a complaint from a visitor. The attorney general and I agree that the state is on firm legal footing as we move to return the Bibles to the rooms. These Bibles are donated by outside groups, not paid for by the state, and I do not believe that a Bible in a bedside table drawer constitutes a state establishment of religion. In fact, any group is free to donate literature.

UPDATE: American Atheists announced (May 17) that it is taking the Governor up on his offer and is sending "enough popular atheist books to place one in every state park cabin in the state."

Christian Evangelists Escorted From 2012 Arab International Festival Lose Civil Rights Suit

In Bible Believers v. Wayne County, (ED MI, May 14, 2013), a Michigan federal district court dismissed a suit for declaratory and injunctive relief and nominal damages brought by a group of traveling Christian evangelicals who were escorted away by police and threatened with dsorderly conduct citations at last year's Arab International Festival in Dearborn, Michigan.  The group preached, using a megaphone, for 90 minutes, insulting and denouncing Islam. Festival attendees-- particularly children-- began hurling objects at the preachers. Police officials tried to stem the crowd.  Eventually, however, fearing someone would be injured, they ordered the preachers to leave. The court concluded that police acted in a content-neutral manner and were justified in stopping the speakers because of the actual violence that occurred, even if the violence stemmed from the crowd's disagreement with the speakers.  The court said:

Even when construing the evidence in the light most favorable to Plaintiffs, the evidence also suggests that sheer size of the crowd and expanse of the Festival grounds made it unfeasible to proceed against the crowd.

The court also rejected plaintiffs' free exercise and equal protection claims, and held that even if there was a constitutional violation, municipal  liability is inappropriate.

Plaintiffs have filed an immediate Notice of Appeal to the 6th Circuit. The American Freedom Law Center issued a press release on the decision. The Dearborn Press and Guide reported on the decision.

EEOC Sues Medical Services Company That Required Employees To Participate In Scientology Classes

The EEOC announced last week that it has filed a Title VII lawsuit against the Florida-based Dynamic Medical Services, Inc. for requiring its employees to attend courses that used Scientology religious practices. The suit-- alleging hostile work environment and failure to accommodate employees' religious beliefs-- claims that the Miami company that provides medical and chiropractic services required its employees to spend at least half their work days in courses that involved practices such as screaming at  ashtrays or staring at someone for eight hours without moving.  Employees were instructed to attend courses at the Church of Scientology, and one employee was required to under go an E-meter "audit." Two employees who refused to participate were terminated.

Suit Against Church Over Pastor's Sexual Assault Dismissed on Collateral Estoppel Grounds

In Liddie v United Community Church of God, (NY Queens Co Sup Ct, April 30, 2013), a New York trial court dismissed on res judicata and collateral estoppel grounds a suit against United Community Church by a woman who claims she was sexually assaulted by the church's pastor while attending a bible study class at the the church. The court found that the issues raised had already been decided on the merits in a prior action in which the court dismissed the claims against the church, finding they failed to state a cause of action.

NEW EEOC Commissioner Sworn In

Yesterday, Jenny R. Yang was sworn in as a Commissioner of the U.S. Equal Employment Opportunity Commission, bringing the EEOC up to its full 5 commissioners.  (EEOC press release.) Yang was nominated by President Obama in August 2012 and her nomination was finally confirmed by the Senate on April 25, 2013. Since 2003, Yang was a partner in the law firm of  Cohen, Milstein, Sellers & Toll where she litigated civil rights and employment discrimination cases. Prior to that, she was with the Justice Department's Civil Rights Division. The EEOC enforces federal employment anti-discrimination laws, including those barring religious discrimination in employment.

Minnesota Becomes 12th State To Legalize Same-Sex Marriage.

The Minnesota state Senate today, by a vote of 37-30, gave final passage to HF 1054, a bill authorizing same-sex civil marriage in the state.  The House of Representatives passed the bill last week by a vote of 75-59. (Legislative history.)  According to the New York Times, Governor Mark Dayton promised he will sign the bill tomorrow (Tuesday) afternoon.  This will make Minnesota the 12th state to legalize same-sex marriage.

The new law includes a number of protections for clergy and religious organizations that object to same-sex marriage. It provides that non-profit religious organizations and educational facilities they operate or supervise can take action on the basis of sexual orientation with respect to education, employment, housing and real property, or use of facilities, except as to secular business activities unrelated to the organization's religious or educational purposes. Also these religious and educational institutions may refuse to furnish goods, services, facilities, or accommodations directly related to the solemnization or celebration of a civil marriage that is in violation of the organization's religious beliefs. They may not be subject to any fine, liability or loss of tax exempt status for such refusal. No member of the clergy or other person authorized to solemnize marriages may be subject to liability or any penalty for refusing to solemnize a marriage for any reason.

The bill also changes all references in Minnesota statues from "marriage" to "civil marriage", and assures same-sex couples married in Minnesota that Minnesota courts will be available for any future dissolution of the marriage if the couple has moved to a state that refuses to recognize same-sex marriage and divorce.

Recent Articles and Books of Interest

From SSRN:

• Seval Yildirim, Global Tangles: Law, Headcoverings and Religious Identity, (Santa Clara Journal of International Law, Forthcoming).
• Faisal Bhabha, From Saumur to L. (S.): Tracing the Theory and Concept of Religious Freedom under Canadian Law, (58 Supreme Court Law Review (2d), 2012).
• Faisal Bhabha, R v. NS: What's Fair in a Trial? The Supreme Court of Canada's Divided Opinion on the Niqab in the Courtroom, (Alberta Law Review, Forthcoming).
• Carl H. Esbeck, Unwanted Exposure to Religious Expression by Government: Standing and the Establishment Clause, (7 Charleston L. Rev. no. 1 ___ (forthcoming 2013)).
• Bruce Ledewitz, The Vietnam Draft Cases and the Pro-Religion Equality Project, (Duquesne University School of Law Research Paper (May 6, 2013)).
• Bryan Dearinger, The Future of Taxpayer Standing in Establishment Clause Tax Credit Cases, (Oregon Law Review, Forthcoming).
• Lapo Filistrucchi and Jens Prufer, Nonprofits are Not Alike: The Role of Catholic and Protestant Affiliation, (TILEC Discussion Paper No. 2013-013 (April 26, 2013)).

From SmartCILP:

• Radwa S. Elsaman and Mohamed A. 'Arafa, The Rights of the Elderly in the Arab Middle East: Islamic Theory versus Arabic Practice, 14 Marquette Elder's Advisor 1-53 (2012).
• Eric D. Yordy, Caught in the Clause: An Analysis of Same-Sex Marriage Through the Lens of the Establishment Clause, 22 Tulane Journal of Law & Sexuality 55-89 (2013).
• Invisible Constitutions: Culture, Religion, and Memory. Articles by Abdullahi Ahmed An-Na'im, Kathryn E. Fort, Jeffrey A. Redding, Jelte Olthof, Monica Eppinger, Semahagn G. Abebe and Michal Jan Rozbicki. 57 St. Louis University Law Journal 287-455 (2013).

Recent and Forthcoming Books of Interest:

• Michael D'Antonio, Mortal Sins: Sex, Crime, and the Era of Catholic Scandal, (Thomas Dunne Books, April 2013).
• Carolyn Renée Dupont, Mississippi Praying: Southern White Evangelicals and the Civil Rights Movement, 1945-1970, (New York Univ. Press, Aug. 2013).
• John Ragosta, Religious Freedom: Jefferson’s Legacy, America's Creed, (Univ. of Virginia Press, April 2013).

2012 Report On Catholic Diocese Child Protection Compliance and Complaints Issued

Last week, the U.S. Conference of Catholic Bishops released the 2012 annual audit (full text) on diocesan compliance with the Charter for the Protection of Children and Young People. A May 9 Release from the U.S. Conference of Catholic Bishops summarizes the findings of the annual report. The audit showed full Charter compliance by all but four dioceses.  The accompanying survey of abuse allegations lodged in 2012 showed 363 new allegations relating to abuse taking place in past years and 34 allegations of abuse of minors occurring in 2012.  Of the 34 allegations of recent abuse, six were found to be credible and 15 are still under investigation. The allegations of past and current abuse were from 390 people against 313 priests or deacons. 84% of the victims were male. About half were between 10 and 14 when the abuse began.17% were between 15 and 17.  19% were under the age of 10 when the abuse started. As it has done in the past, the Diocese of Lincoln, Nebraska refused to be audited for Charter compliance or to respond to the survey. 3 Eastern rite eparchies also refused to be audited.

Dioceses, eparchies and religious orders spent $148.3 million in 2012 for settlements, attorneys fees, therapy for victims and support for offenders.  Another $26.5 million was spent on child protection programs.

Campus Police File Indecent Exposure Charges In Art Student's Naked Portrayal of the Pope

According to KDKA News, in Pittsburgh (PA) last week campus police at Carnegie Mellon University filed misdemeanor indecent exposure charges against two students growing out of their conduct at the College of Fine Arts' Anti-Gravity Downhill Derby. The event was part of the University's April 18-20 Spring Carnival. One of the two students charged was 19-year old Katherine O’Connor who appeared in the art school's parade dressed as the pope, naked from the waist down with her pubic hair shaved in the shape of a cross, and passing out condoms.  Prior to the announcement of the filing of charges, the Pittsburgh Catholic Diocese had issued a statement saying that it was glad the university was taking seriously complaints about the matter, and said that the student involved "truly offended Catholics and the faith we hold sacred." In a May 10 message (full text) announcing filing of the misdemeanor charges, Carnegie Mellon president Jared Cohon said in part:

The students took part in a campus art event and, in the case of the student who portrayed herself as the Pope, made an artistic statement which proved to be controversial. While I recognize that many found the students’ activities deeply offensive, the university upholds their right to create works of art and express their ideas. But, public nudity is a violation of the law and subject to appropriate action.

Recent Prisoner Free Exercise Cases

In Widi v. United States Department of Justice, 2013 U.S. Dist. LEXIS 62269 (D ME, May 1, 2013), a Maine federal district court dismissed as "fanciful" an inmate's claims, including free exercise claims, objecting to a tuberculosis test.

In Cox v. Glebe, 2013 U.S. Dist. LEXIS 66497 (WD WA, May 9, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 66563, March 29, 2013) and rejected a Protestant inmate's claim that prison authorities violated the establishment clause by serving all inmates meatless meals on Wednesdays and Fridays during Lent.

In Irvin v. Yates, 2013 U.S. Dist. LEXIS 66564 (ED CA, May 9, 2013), a California federal magistrate judge allowed plaintiff to move ahead with his complaint that Muslim inmates were denied access to the chapel and forced to attend religious services in the yard, and that they were denied religious dietary accommodations. Claims as to temporary suspension of inmate purchases of religious oils, and as to failure to hire a new Muslim chaplain were dismissed with leave to amend.

In Spivey v. Chapman, 2013 U.S. Dist. LEXIS 66828 (SD IL. May 10, 2013), an Illinois federal district court adopted part of a magistrate's recommendation (2013 U.S. Dist. LEXIS 67778, March 21, 2013) and permitted a Reform Jewish inmate to proceed with his claim that authorities refused for discriminatory reasons to modify his work schedule so he could take off for his Sabbath. However it concluded that his RLUIPA claim for injunctive relief is moot because he has been moved to a different prison. [Updated].

In Hicks v. Ryan, 2013 U.S. Dist. LEXIS 66930 (D MA, May 9, 2013), a Massachusetts federal district court permitted an inmate to move ahead with his claim that prison authorities barred wheelchair bound inmates from attending church services and instead limited them to short bedside visits from nuns.

In Perkins v. Chandler, 2013 U.S. Dist. LEXIS 66715 (WD KY, May 9, 2013), a Kentucky federal district court dismissed an inmate's claim that denial of his parole was based on false charges of homosexual conduct in retaliation for his practice of the Islamic religion, and that the charges were a defamation of his religion.

School Board Cancels Official 6th Grade Graduation After Complaints About Prayer; Privately Sponsored Ceremony Planned

In Lake City, Arkansas, the Riverside School District has voted "to no longer sponsor the 6th grade graduation" after the Freedom From Religion Foundation, on behalf of a parent, wrote to object to prayer being part of the graduation ceremony. Yesterday's Christian Post reports that instead several mothers are organizing a graduation ceremony at a local church.  Parent Kelly Adams, who objected to the Board's cancellation of the ceremony, argued: "We serve a God. And we should have the right to serve that God anywhere."

Saudi Court Sentences 2 To Jail, Lashings For Aiding Woman's Conversion To Christianity

Naharnet today reports that a court in the Saudi Arabian city of Khobar has sentenced two men for helping a young woman, identified only as "the girl of Khobar", convert to Christianity and flee to Sweden. All 3 were co-workers at an insurance company in Khobar. A Lebanese man was sentenced to 6 years in prison and 300 lashes for encouraging the conversion. A Saudi man was sentenced to 2 years in prison and 200 lashes for helping the woman flee the country. The defendants say they will appeal. Still pending are possible charges of corruption and forging official document that allowed the woman to leave Saudi Arabia without her family's consent.

Turkey's Constitution Drafters Agree On Freedom of Religion Clause That Will Permit Headscarves In Public Service

The Turkish Parliament in 2011 created a Constitutional Reconciliation Commission made up of representatives of each of the country's four political parties to draft a new constitution. (Background.) World Bulletin reported yesterday that the Commission, which has missed several deadlines for completing its work, has now agreed on a compromise provision on freedom of religion that will allow Muslim women to wear headscarves while serving in government positions. The compromise came after the Republican People's Party (CHP) backed off of its former objections.  The Commission has agreed on the following language:

No one can be forced to participate in religious practices or ceremonies or express their religious beliefs or thoughts. No one can be prohibited from or denounced for fulfilling the requirements of their religious beliefs.

The Commission also agreed on other language to guarantee the equality of all citizens.

Psychiatrist's License Suspended After His Diagnosis of 16-Year Old As Suffering From Evil Spiritual Entities

As reported by the Boston Globe, on May 8 the Massachusetts Board of Registration in Medicine suspended the medical license of psychiatrist Raymond W. Kam, saying that his conduct in treating a 16-year old patient last year called into question his competence to practice medicine.  Kam last year had already signed a voluntary agreement not to practice medicine. Kam, a Boston Children's Hospital psychiatrist, became convinced that the patient was being hurt by "evil spiritual entities."  Kam gave the girl a cross to wear in exchange for a different religious symbol she had on. After the girl was discharged from the hospital, Kam, who had withdrawn from the girl's treatment team, obtained permission from the girl's father to act as her spiritual mentor, taking her to his church and exchanging text messages with her. When the girl was kicked out of her house, Kam offered to let her stay at his house on several occasions. He failed to report to authorities an incident in which the girl's mother pushed her down a flight of stairs and tried to asphyxiate her.

The state Board also reprimanded a second psychiatrist who had failed to report the girl's abuse to authorities.  Kam could regain his license next year if he completes a psychiatric evaluation and enters a 5-year probation agreement.

Court Dismisses Land Use Complaint By Ranch Owner Seeking To Build Chapel

In Anselmo v. County of Shasta, California, (ED CA, May 9, 2013), a California federal district court dismissed on ripeness grounds a RLUIPA claim by the Catholic owner of a ranch and winery challenging the County of Shasta's assertion that he was violating zoning rules by building a private chapel on his land. The court said:

Plaintiffs never completed the application process for either a rezoning permit or a building permit, and the Notice of Non-Compliance and Warning Notices only indicate that the property is currently violating land use regulations.

The court also rejected plaintiffs' free exercise and due process claims. (See prior related posting.) KHSL TV reports on the decision.

In Israel "Women of the Wall" Pray With Police Protection After Winning Court Ruling

In Israel today, Women of the Wall held their first prayer session since a court decision (see prior posting) vindicating their right to pray at Jerusalem's Western Wall wearing prayer shawls (traditionally worn only by men). The women's group, pressing for women's religious rights, worships at the Western Wall each month on Rosh Chodesh (the beginning of the new month). The Jerusalem Post reports that several thousand male yeshiva students and haredi (ultra-Orthodox) school girls gathered at the Wall to protest. The school girl protest was apparently devised by Knesset members from the United Torah Judaism party.  A large number of police were at the Wall and attempted to create a protective barrier between the men's and women's sections.  Protesters shouted threw water bottles and other objects at the women, and spit at them.  Three haredi men were arrested for disturbing the peace.

In an interview with the Jerusalem Post, the Orthodox rabbi in charge of the Western Wall site expressing distress over the events and asked the Women of the Wall to stop their activities, He said they are a small group trying to sow discord and force their opinions on others. Meanwhile, Huffington Post reports on a statement issued by Women of the Wall praising the police for the protection they provided, and "call[ing] on ultra-Orthodox leadership to denounce all forms of violence against women."

Indian Court Sentences 3 To Life In Prison for 1984 Anti-Sikh Killings

The Business Standard reports that a court in India yesterday sentenced 3 defendants to life in prison for killing 5 people in 1984 in anti-Sikh riots that followed the assassination of prime minister Indira Gandhi.  The prosecution had sought the death penalty. Two others involved (a former councilor and former legislator) were sentenced to 3 years for rioting. All 5 also received fines.  The 5 were convicted in a trial last month.  In that trial, Indian National Congress Party leader Sajjan Kumar was acquitted.

Court Denies Freedom of Information Request Relating To NYPD Surveillance of Muslims

In Asian American Legal Defense & Education Fund v. New York City Police Department, (NY Sup. Ct., May 6, 2013), a New York trial court upheld the NYPD's rejection of a Freedom of Information Law request by two groups seeking to learn more about the city's domestic surveillance program that targeted Muslims.  The groups sought information regarding record keeping and retention, policy guidelines and statistics related to the surveillance. The court said that the city properly relied on the statutory exemption for information "compiled for law enforcement purposes and which, if disclosed, would: (i) interfere with law enforcement investigations or judicial proceedings; [or] (iii) identify a confidential source or disclose confidential information relating to a criminal investigation; or (iv) reveal criminal investigative techniques or procedures ." The court also identified several other exceptions that would justify denial of parts of the FOIL request. The New York Daily News reports on the decision.

Land Agreement Under Reformed FLDS United Effort Plan Trust Upheld

In Town of Colorado City v. United Effort Plan Trust, (D AZ, May 8. 2013), an Arizona federal district court gave a victory to the state of Utah in its efforts to reform the United Effort Plan Trust which holds property occupied by members of the polygamous Fundamentalist Church of Latter Day Saints (FLDS). In this lawsuit, the twin towns of Colorado City, Arizona and Hildale, Utah (along with their water and electric companies) sought a declaratory judgment as to (1) whether transfers of property by the court-appointed special fiduciary are constitutional, and (2) whether the Cookes who occupy a parcel of land under a 2008 agreement with the special fiduciary or Robert Black who previously occupied it through a 1999 oral agreement under the unreformed trust have a legal right to it.

As to the constitutional issue, the court held that while the claim was not barred by res judicata or collateral estoppel (see prior posting), the towns are barred by the doctrine of laches from asserting their claims:

Plaintiffs waited years to assert that claim, during which hundreds of property transactions were completed in reliance on the validity of the reformed trust and Mr. Wisan’s actions

On the question of right to occupancy, the court ruled in favor of the Cookes.  It focused on language in the trust at the time Black obtained his occupancy rights: "use of property owned by the United Effort Plan Trust is not and does not
become a right or claim of anyone who may benefit in any way from the Trust." It also concluded that the statute of frauds precludes Black from asserting a claim of property rights and that Black has abandoned any rights he had in the property.

Puerto Rico Federal Court Issues Opinion Explaining Its Prior Order On Proselytizers' Access To Gated Communities

In a long-running free-exercise/ free-speech case, in March a the federal district court in Puerto Rico, on remand from the 1st Circuit, ordered neighborhood homeowners' associations (urbanizations) that allow entry into the neighborhood only through an unmanned locked gate operated by a key, access code or beeper to provide Jehovah's Witnesses who wish to proselytize in the neighborhood access equal to that of residents. (See prior posting.) Apparently the negative response to the ruling impelled the court to issue an opinion further explaining its order. Watchtower Bible Tract Society of New York, Inc. v. Municipality of Santa Isabel, (D PR, May 6, 2013), is an opinion captioned: "Order Summarizing the Law and Court Orders Regarding the Right of Jehovah's Witnesses To Access Public Streets In Gated Communities In Puerto Rico." In it, the court said in part:

The Court is aware this case has sparked extreme public debate...  The Court is not deaf to the concerns of the general public that resides in gated communities. To be sure, as much as this case is about civil liberties, it is also about the frightening amount of crime currently suffocating the island. The general public, as evidenced by the hordes of motions recently filed by the Municipal Defendants, appears not to grasp the notion that this Court is only enforcing an order of a higher court. In doing so, this Court must strike a balance between a legitimate form of protection against crime and protecting the civil liberties of the citizenry in Puerto Rico....

The Court has not granted unfettered access to violent criminals, nor should any knowledgeable or reputable person spread such fear. The gates were erected as a means to reduce crime on the island. Since the enactment of the Control Access Law, crime has not substantially abated on the island. The Court is not aware of a single instance in which any Jehovah’s Witness has been charged or convicted of a crime while expressing his or her religious beliefs. The Jehovah’s Witnesses enjoy the same First Amendment rights as all residents of Puerto Rico. If access to public streets can be denied to them, then access can be denied to anyone. For example, an aspiring politician will be barred from going door-to-door seeking endorsements. Likewise, the press could also be prevented from entering a gated community to cover the reactions of residents to a court ruling, as that in this case. More so, during Easter, Catholics could similarly be barred from participating in a Via Crucis on public streets....

A copy of this order shall be provided by each Municipality to the administrator of every gated community.

Catholic Army Sergeant Claims Harassment Because Fellow-Soldiers Thought She Was Muslim

AP reported at length yesterday on the problems faced in the U.S. Army by Sgt. 1st Class Naida Hosan who is Catholic, but whose fellow-soldiers thought she was Muslim.  She was taunted so much by other soldiers that before deploying to Afghanistan last year, she changed her name to Naida Christian Nova. However this did not stop the anti-Muslim slurs and jokes directed at her. Nova is a multicultural Farsi linguist. She says that when she filed a formal complaint about her treatment in 2007, her commander removed her from her job and ordered her to take a mental health evaluation. Ultimately she was sent back from Afghanistan to Ft. Bragg and threatened with an involuntary termination of her military career for  "ineffective leadership." After a federal lawsuit was filed, the Army dropped all its disciplinary charges and Nova has re-enlisted.

Another Contraceptive Coverage Challenge Filed By A For-Profit Small Business

Suits challenging the Affordable Care Act contraceptive coverage mandate continue to be filed. Thomas More Law Center announced the filing of a suit yesterday on behalf of a family-owned company that is a leading supplier of custom injection molding products, and on behalf of the four brothers who own and control the business. Three of the brothers are Catholic and one is Baptist. The complaint (full text) in M&N Plastics, Inc. v. Sebelius, (ED MI, filed 5/8/2013), asserts that plaintiffs in particular object to the requirement that the health insurance policies they provide cover Plan B and ella "since they believe those drugs could prevent a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of a person." The complaint alleges that the mandate violates the 1st Amendment, RFRA and the Administrative Procedure Act.

Texas Trial Court Says Cheerleaders Can Use Run-Throughs With Religious Messages

A Texas trial court yesterday decided a widely-followed Establishment Clause case.  In Matthews v. Kountze Independent School District, (TX Dist. Ct., May 8, 2013), the court rejected an Establishment Clause challenge to high school cheerleaders displaying their own banners and "run-throughs" containing religious messages at football games and other sporting events. The court had previously issued a temporary injunction after concluding that the cheerleaders were engaging in private religious expression. (See prior posting.) In yesterday's brief decision, the court said in part:

The evidence in this case confirms that religious messages expressed on run-through banners have not created, and will not create, an establishment of religion in the Kountze community.

After the decision, Texas attorney-general Greg Abbot issued a statement (full text) saying in part:

This is a victory for religious liberties and for high school cheerleaders who stood up to powerful forces that tried to silence their voices. The Freedom From Religion Foundation was wrong in trying to bully Kountze ISD into prohibiting the cheerleaders from displaying banners with religious messages. Our Constitution has never demanded that students check their religious beliefs at the schoolhouse door.

Texas Governor Rick Perry also issued a statement (full text), praising the cheerleaders of showing "great resolve and maturity beyond their years." Liberty Institute issued a press release announcing the decision, and ABC News reports on the decision in the widely-followed case. The Freedom From Religion Foundation issued a press release calling the decision "misguided."

Statement Clarifies Charges That Military Has Been Hostile To Evangelical Christians

In recent weeks, the blogosphere has been filled with various charges that the U.S. military has taken actions seen as hostile to evangelical Christians.  On Monday, the Southern Baptist Convention's North American Mission Board and Ethics and Religious Liberty Commission issued a statement (full text) finally bringing some clarity to what actually happened.  As it turns out, the military has admitted that some of its actions were erroneous and corrected them. Other actions were mischaracterized in the media. The military does take the position that "proselytizing", defined as unwelcome coercion of religious beliefs, would be considered a Uniform Code of Military Justice offense.  Unwelcome advances are seen as violating good order and discipline by forcing faith beliefs on others.

City Officials Tell Store Owner To Remove Madonna Statue From Traffic Island

West Springfield, Massachusetts has created a beautification initiative under which businesses and individuals on the West Side agree to landscape and maintain specific parcels of public property. According to today's The Republican, officials in West Springfield have told local pizza store owner Antonio Liquori that he has gone too far in his beautification activities. After receiving several complaints, officials have ordered Liquori to remove a statute of the Virgin Mary that he put up nearly a year ago on a traffic island he has adopted. At least one local resident, Joan Palermo, is mounting a petition drive to get the statute returned. According to 22 News, Palermo complained: "Everyone I know was very upset…The Virgin Mary wasn't doing anything, she was beautiful." City officials say that in the future, beautification efforts will be limited to plantings.

Settlement Reached In Suit By Christian Proselytizers Arrested At Arab International Festival; More Confrontations Likely This Year

The American Freedom Law Center announced this week that a settlement has been reached in Acts 17 Apologetics v. City of Dearborn. In the case, three Christian evangelists sued over their arrest and subsequent breach of the peace trial for proselytizing Muslims at Dearborn, Michigan's Arab International Festival. (See prior posting.) Under the settlement agreement, the city will post a public apology on its website, remove from its website a press release and letter from the mayor that contained derogatory comments about Christians, and will pay an undisclosed amount to plaintiffs.

Meanwhile Dearborn's mayor announced last month that this year the site of the festival was being moved to a local park, a site that the police can better control. (Detroit Free Press, April 29). It is likely that police will face challenges at the June 14-17 festival this year. According to yesterday's Oakland County Daily Tribune, inflammatory anti-Muslim Florida pastor Terry Jones plans to attend the festival again this year:

Jones announced that he and Pastor Wayne Sapp will be joined by Ruben Israel of the Bible Believers, whose appearance at last year’s festival led to items being thrown at them and the video being posted on YouTube; Pastor David Grisham of Repent Amarillo; and Rabbi Nachum Shifren of the California Security Council.

DC Circuit Grants Government's Strategic Motion For Dismissal of Its Contraceptive Coverage Appeal [UPDATED]

As reported by the Christian Science Monitor, last week the D.C. Circuit Court of Appeals granted the government's motion to dismiss its appeal of a preliminary injunction won by Tyndale House, a for-profit Bible publishing company, against enforcement of the Affordable Care Act contraceptive coverage mandate. (See prior posting.) An appeal is pending in the D.C. Circuit in another case raising the same issues and it is being heard by a different 3-judge panel that apparently the government considers more sympathetic to its arguments. Tyndale House had opposed the government's motion to dismiss the appeal, but now that it has been dismissed Tyndale House lawyers say: "The government dismissed its appeal because it knows how ridiculous it sounds arguing that a Bible publisher isn’t religious enough to qualify as a religious employer."

UPDATE: The issue of the motivation behind the government's motion is more complex than suggested above.  It turns out that the 3-judge panel which denied appellants an injunction pending appeal in the other pending case, Gilardi v. Sebelius, also granted an expedited appeal and ordered that "the case be scheduled for oral argument on the same day and before the same panel as Tyndale House Publishers, Inc. v. Sebelius", sometime in September. (Full text of order denying injunction and ordering same panel.) Of course, now there is no "same panel" to hear the Gilardi appeal, and it is unclear whether it will go before the panel that heard and denied the motion in Gilardi for an injunction pending appeal-- the one presumably favored by the government. So it may be that the government merely thought that Gilardi was a better case on the merits for it to use to test the issue since the companies there are not engaged in a business related to religion in the way a Bible publisher in Tyndale is. (See prior related posting.) [Thanks to Duane Schmidt for the lead.]

Delaware Becomes 11th State To Permit Same-Sex Marriages

As reported by the New York Times, Delaware today became the 11th state to authorize same-sex marriage. The new law also converts exiting Delaware civil unions into marriages.  House Bill No. 75 (full text) was passed last month by the state House of Representatives by a vote of 28-18.  The state Senate passed the bill just before 7:00 pm tonight by a vote of 12-9. (Legislative history.) Gov. Jack Markell signed the bill within minutes of its passage. The new law protects clergy who object to performing same-sex marriages.  It provides:

nothing in this section shall be construed to require any person (including any clergyperson or minister of any religion) authorized to solemnize a marriage to solemnize any marriage, and no such authorized person who fails or refuses for any reason to solemnize a marriage shall be subject to any fine or other penalty for such failure or refusal.  Notwithstanding the preceding sentence, a clerk of the peace who issues a marriage license, or a deputy thereof, shall be required to perform a solemnization of such marriage if requested by the applicants for such license.

Louisiana Supreme Court Invalidates State School Voucher Program

The Louisiana Supreme Court today in a 6-1 decision held that the state's school voucher program enacted in 2012 violates the state constitution.  In Louisiana Federation of Teachers v. State of Louisiana, (LA Sup. Ct., May 7, 2013), the majority addressed both the statute creating the program (Act 2) and the Senate concurring resolution (SCR 99) approving the funding formula created by the State Board of Elementary and Secondary Education. The majority said:

SCR 99 and Act 2 unconstitutionally divert MFP [Minimum Foundation Program] funds to nonpublic entities in violation of La. Const. art. VIII, § 13(B), which requires state MFP funds to be allocated equitably to “parish and city school systems.” We also hold that ... SCR 99 did not satisfy all that the constitution requires of a matter intended to have the effect of law. SCR 99 was not timely introduced or considered in the legislative session and the final vote on SCR 99 was insufficient to enact a matter intended to have the effect of law.

Justice Guidry filed a dissenting opinion. The Advertiser has reactions of various Louisiana officials to the decision.

Some New Jersey Legislators Question State Construction Funding Award To Jewish Rabbinical School

Yesterday's Newark Star-Ledger reports that in New Jersey, some Democrats are questioning the inclusion of a large, all-male Orthodox Jewish rabbinical school among the institutions of higher education that will participate in the $1.3 billion of state financing for construction at New Jersey colleges and universities.  The 6,600 student Beth Medrash Govoha, based in Lakewood, is scheduled to receive $10.6 million for a new library and academic center.  Assembly Speaker Sheila Oliver says that the school essentially has a religious test for admission.  Students who wish to enroll must speak Hebrew, know Jewish sacred texts and agree not to date during their the first six months at the school. The school's vice president denies that it imposes a religious test, saying however that the school does have strict educational standards.  The head of the school, Rabbi Aaron Kotler, traveled with Gov. Christie to Israel last year, and the Orthodox Jewish community has endorsed Christie in his race for re-election. The higher education bond bill passed last year originally would have excluded schools that primarily train ministers, priests or rabbis, but that limitation was removed after a lobbyist retained by Beth Medrash Govoha met with New Jersey legislators. The state legislature has 60 days to reject the governor's list of schools that will participate.

Court Rejects Proposed Settlement In Challenge To Nevada's Prison Policy On Kosher Food

In Ackerman v. State of Nevada Department of Corrections, (D NV, May 3, 2013), a Nevada federal district court rejected a proposed settlement of a class action brought on behalf of 205 inmates who objected to the state prison system's provision of a common fare menu instead of kosher food. The court also dissolved the preliminary injunction it had previously issued to allow plaintiffs to continue to receive kosher meals, and decertified the plaintiff class, some of whom now apparently had diverging interests. This means that the state can move ahead with its original plans.  As reported by the Las Vegas Sun, under the proposed settlement, the state would have had an outside organization certify the prison kitchen preparing the common fare meals as kosher. However more than 20% of the inmates who were members of the plaintiff class, including the lead plaintiff, objected to the settlement. Complaining members of the class insisted that they were inadequately represented by counsel. The court said in part:

the Court continues to recognize that the likelihood of success on the merits is not strong. What has changed since the original injunction order is that the balance of equities no longer tips sharply in favor of Plaintiff or any of the class. Defendants, as representatives of the State of Nevada and its citizens, have borne the financial burden of delaying implementation of a cost-cutting menu, at a time when the state is experiencing budget emergencies.

Indiana Suit Against Catholic Diocese Seeks Damages For Disabled Daughter's Sexual Encounter At Abstinence Retreat

The Indianapolis Star reported yesterday on a lawsuit pending in state court in Daviess County, Indiana, brought against the Catholic Diocese of Evansville and several others by the mother of a developmentally disabled young woman over events at a church-sponsored abstinence retreat 5 years ago.  The daughter (then 23 years old), who because of her mental condition was unable to legally consent, had sex with a 25-year old man also attending the retreat. Subsequently, in a plea deal, he was apparently convicted of rape and deported.  The lawsuit brought by Silvia Gameros charges the Diocese with failing to protect her daughter and then trying to cover up the incident. The suit also names as defendants Our Lady of Hope Catholic Church (the parish that hosted the retreat for Hispanic youths), and two outreach workers with the diocese's Guadalupe Center which sponsored the retreat. One of those workers, a friend, extended a last-minute invitation to the daughter to attend, in part in an effort to get a large attendance. The suit seeks damages to cover the medical care and counseling of the daughter, as well as punitive damages.

Can High School Students Pray Instead Of Going To Class?

The question of what limits there are on student-initiated prayer in schools has surfaced in Lumpkin County, Georgia.  According to Fox5 News, last Wednesday a student member of Lumpkin County High School's Fellowship of Christian Athletes showed up at the coach's office at 7:30 am and began to pray with the coach.  The prayer lasted over two hours, and before it was finished some 50 students had joined in the prayer that extended into first period when they should have been in class.  Lumpkin County Schools Superintendent Dewey Moye says that the students were within their right, but that from now on there will be no prayers during school hours. According to Opposing Views, the ACLU is investigating the incident.

In Bangladesh, 3 Killed In Demonstration Demanding Blasphemy Law With Death Penalty

Yesterday in Dhaka, the capital of Bangladesh, three people were killed and at least 50 were injured in clashes between security forces and demonstrators who are demanding a blasphemy law with provision for the death penalty. According to Al Jazeera, demonstrators are supporters of a new group, Hefazat-e-Islam, which has a list of 13 demands, including mandatory religious education, a ban on men and women mixing freely together and restoring pledges to Allah in the constitution.

Recent Articles of Interest

From SSRN:

• Jeroen Temperman, Are State Churches Contrary to International Law?, (2:1 Oxford Journal of Law and Religion pp. 119-149 (2013) (Forthcoming)).
• Menachem Mautner, The Immanuel Affair and the Problems of Intercultural Encounter, (Democratic Culture in Israel and in the World, Vol. 15, 2013).
• Ronald K.L. Collins, Comedy and Liberty: The Life and Legacy of Lenny Bruce, (Social Research, Vol. 79, No. 1, pp. 61-86 (Spring 2012)).
• John D. Inazu, The Freedom of the Church (New Revised Standard Version), (Journal of Contemporary Legal Issues, Forthcoming).
• Jack M. Balkin, Must We Be Faithful to Original Meaning?, (Jerusalem Review of Legal Studies, 2013).
• Aaron J. Saiger, Charter Schools, the Establishment Clause, and the Neoliberal Turn in Public Education, (Cardozo Law Review, Vol. 34, No. 1163, 2013).
• Clark B. Lombardi and Nathan J. Brown, Islam in Egypt's New Constitution, (Foreign Policy, December 2012).
• Clark B. Lombardi, Designing Islamic Constitutions: Past Trends and Options for a Democratic Future, (International Journal of Constitutional Law, 2013).
• Fiona De Londras and Laura Graham, Impossible Floodgates and Unworkable Analogies in the Irish Abortion Debate, (Irish Journal of Legal Studies, Forthcoming).
• Roberta Rosenthal Kwall, Remember the Sabbath Day and Enhance Your Creativity!, (St. Thomas Law Review (Minnesota), Forthcoming).
• Caroline Mala Corbin, Compelled Disclosures, Alabama Law Review, Forthcoming.

From SmartCILP:

• Frederick Mark Gedicks, Narrative Pluralism and Doctrinal Incoherence in Hosanna-Tabor, 64 Mercer Law Review 405-435 (2013).
• Kent Greenawalt, Religious Toleration and Claims of Conscience, [Abstract], 28 Journal of Law and Politics 91-128 (2013).
• Robert Luther III, "Disparate Impact" and the Establishment Clause, [Abstract], 10 Georgetown Journal of Law and Public Policy 529-538 (2012).
• Brian M. Murray, The Elephant in Hosanna-Tabor, 10 Georgetown Journal of Law and Public Policy 493-528 (2012). 

Obama Sends Greetings To Those Observing Orthodox Christian Easter

Yesterday was Easter on the Orthodox Christian calendar.  On Saturday, President Obama issued a statement (full text) extending best wishes from himself and the First Lady to Orthodox Christians in the U.S. and around the world observing Holy Friday and the Feast of the Resurrection.  The statement said in part:

For millions of Orthodox Christians, this is a joyful time.  But it’s also a reminder of the sacrifice Christ made so that we might have eternal life.  His decision to choose love in the face of hate; hope in the face of despair is an example we should always strive to follow.  But it’s especially important to remember this year, as members of the Orthodox community have been confronted with persecution and violence, particularly in the Middle East and North Africa.

Baptist Children's Home Cannot Challenge Kentucky's Settlement of Establishment Clause Case

Pedreira v. Sunrise Children's Services, (WD KY, May 2, 2013) is the latest installment in the long-running Establishment Clause litigation challenging Kentucky's payments to a Baptist-operated child-care agency to provide residential treatment facilities for abused and neglected children. In March, the state agreed with plaintiffs to settle the case by placing new church-state safeguards in its contracts with child care agencies. (See prior posting.)   However, Sunrise Children's Services, the child-services agency whose practices were at issue, objected to the settlement arguing that the Settlement Agreement imposes obligations on it without giving it the opportunity to litigate the merits further. The court however rejected this argument, saying that new obligations are not imposed on Sunrise.  Instead any new obligations would be ones that Sunrise voluntarily assumes by entering a contract with the state on the new terms that the the state has agreed to include.