City Officials Denied Attorneys' Fees Despite Plaintiffs' Dismissal of Establishment Clause Challenge

In Arneson v. Grebien, (D RI, May 22, 2013), a Rhode Island federal district court refused to award attorney' fees to Pawtucket, Rhode Island officials who were successful in avoiding liability in a second lawsuit that was brought by city homeowners and taxpayers challenging under the Establishment Clause (as well as on other grounds) the city's policy of allowing Catholic schools to use publicly owned athletic fields without charge. Plaintiffs ultimately voluntarily dismissed their lawsuit, though not for some time after the city prevailed in another lawsuit raising similar, but not identical challenges. (See prior posting.) Nevertheless, the court concluded that the prevailing defendants did not meet the extremely high standard imposed in order to obtain a fee award under 42 USC 1988.

President Nominates Feldblum For Another Term on EEOC

Last week President Obama sent to the U.S. Senate the nomination of Chai Rachel Feldblum for another term on the U.S. Equal Employment Opportunity Commission. The nomination is for a term ending July 1, 2018.  (White House press release). Feldblum's current term expires on July 1 of this year. The The EEOC enforces federal employment discrimination laws, including those that ban religious discrimination in employment. Feldblum's initial nomination in 2009 was controversial among conservative Christian groups. (See prior posting.)

New Zealand Pro-Family Organization Appeals Its Deregistration By Charities Board

In New Zealand today, the organization Family First announced that it is filing an appeal with the High Court challenging the decision of New Zealand's  Charities Registration Board to deregister the organization as a charity.  The Charities Registration Board announced earlier this month that Family First, which promotes a traditional definition of marriage and family, does not meet the charitable purposes requirement set out in the Charities Act 2005. The Board explained:

The Board’s position is that Family First's main purpose is to promote particular points of view about family life.  Under the Act promotion of a controversial point of view is a political purpose.

In making its decision the Board determined that Family First does not advance religion or education, nor promote a benefit to all New Zealanders as determined by the Act.

ONE News, reporting on the decision to file the lawsuit, quotes the head of Family First who says that the government's decision is highly politicized.

Recent Articles of Interest

From SSRN:

• Lorin C. Geitner, Social Architecture and the Law: Law, Through the Lens of Religion, (May 10, 2013).
• Joseph E. David, Dwelling within the Law: Nahmanides’ Legal Theology, (Oxford Journal of Law and Religion, (2013), pp. 1–21).
• Thmas C. Berg, Secular Purpose, Accommodations, and Why Religion is Special (Enough), (80 U. Chicago L. Rev. Dialogue 24 (2013)).
• Brian Sheets, Papers or Plastic: The Difficulty in Protecting Native Spiritual Identity, (Lewis & Clark Law Review, Vol. 17, No. 2, 2013).
• Joseph E. David, The Notion of Tolerable Error from the Mishnah to Maimonides, (Toleration within Judaism (The Littman Library of Jewish Civilization, 2013)).
• Thomas C. Berg, Progressive Arguments for Religious Organizational Freedom: Reflections on the HHS Mandate, (Journal of Contemporary Legal Issues, Forthcoming).
• Justin Roth Muehlmeyer, Toward a New Age of Consumer Access Rights: Creating Space in the Public Accommodation for the LGBT Community, Cardozo Journal of Law and Gender, Forthcoming.
• Noemi Gal-Or, Let's Debate: State and Religious Freedoms in Canadian Democracy, (Journal of Parliamentary and Political Law/Revue de droit parlementaire et politique, VII (2), (2013, Forthcoming)).
• James E. Fleming  and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues, (Harvard University Press, 2013).
• Louis-Philippe Raynault-Ollu, Sunday Observance Laws in North America (February 20, 2012).

From SmartCILP:

• Jacob E. Dean, "Do You Have That New Church App for Your iPhone?"--Making the Case for a Clearer and Broader Definition of Church Under the Internal Revenue Code, [LEXIS link], 46 Creighton Law Review 173-206 (2013).
• Radwa S. Elsaman and Ahmed Eldakak, Is the Middle East Moving toward Islamism After the Arab Spring? The Case Study of the Egyptian Commercial and Financial Laws, 12 Richmond Journal of Global Law & Business 1-22 (2012).

As Memorial Day Approaches, Some Attention Returns To Veterans' Grave Markers

As Memorial Day approaches (Presidential Proclamation), at least some attention has been focused on the "emblems of belief" that are available to be placed on government-furnished headstones or markers for veterans.  The Department of Veterans Affairs furnishes at government expense a headstone or marker for deceased veterans, or in some cases a medallion to be placed on a privately purchased headstone. (National Cemetery Administration release.) (38 CFR Sec. 38.630).  Some 56 different emblems are currently approved. (National Cemetery Administration listing.) If an emblem representing a deceased veteran's religious beliefs is not currently available, the next of kin may apply for an emblem to be added representing those beliefs.  Earlier this month, at least some in the blogosphere reported on the May 2 addition of Thor's Hammer to the list of approved emblems (The Wild Hunt blog), indicating that a campaign for adding it began after the 2007 addition of the Pentacle. (The Wild Hunt blog.) It appears that 18 belief emblems have been added since 2007, including an emblem for the Unification Church also added in May. Here is the National Cemetery Administration's statement on criteria for approving a new emblem:

An emblem of belief for inscription on a Government headstone or marker is an emblem or symbol that represents the sincerely held belief of the decedent that constituted a religion or the functional equivalent of religion and was believed and/or accepted as true by that individual during his or her life. The belief represented by an emblem need not be associated with or endorsed by a group or organization.

Emblems of belief for inscription on Government headstones and markers do not include social, cultural, ethnic, civic, fraternal, trade, commercial, political, professional or military emblems. VA will not inscribe any emblem on a headstone or marker that would have an adverse impact on the dignity and solemnity of cemeteries honoring those who served the Nation. Emblems that would not be permitted include (but are not limited to), emblems that contain explicit or graphic depictions or descriptions of sexual organs or sexual activities that are shocking, titillating, or pandering in nature; and emblems that display coarse or abusive language or images.

[Thanks to God and Country blog for the lead.]

Recent Prisoner Free Exercise Cases

In Gonzalez v. Governor of State of Washington, (9th Cir., May 22, 2013), the 9th Circuit dismissed under the Rooker-Feldman doctrine an inmate's claim that state court judges violated his free exercise rights by refusing to transfer his case to an ecclesiastical tribunal.

In Phillips v. Toliver, 2013 U.S. Dist. LEXIS 71337 (ED CA, May 20, 2013), a California federal magistrate judge permitted a Muslim inmate to proceed against the jail chaplain under RLUIPA complaining about denial of Friday Jum'ah congregational prayer time.  He was given leave to amend his complaint to add other individuals as defendants.

In Furnace v. Giurbino, 2013 U.S. Dist. LEXIS 71357 (ED CA, May 17, 2013), a California federal magistrate judge recommended dismissing on collateral estoppel grounds a suit by an inmate who practices Shetaut Neter that he was not furnished a Kemetic diet.  Plaintiff was permitted to move ahead with some of his claims based on denial of necessary religious items.

In Al-Ameen v. Kilby Correctional Facility, 2013 U.S. Dist. LEXIS 70272 (MD AL, May 17, 2013), an Alabama federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 71549, April 3, 2013) and dismissed on statute of limitations grounds an inmate's objections to an officer's refusal to process him into a facility without his furnishing his commitment name, in addition to his religious name.

In Taylor v. Cook County, 2013 U.S. Dist. LEXIS 72890 (ND IL, May 23, 2013), an Illinois federal district court dismissed on various procedural and substantive grounds and inmate's complaint that he was prevented from attending communal Islamic prayer services for the first two months he was in the Cook County Jail, that the jail does not serve Halal meats, and that he was not allowed to observe his Ramadan fast.

In Holtz v. Karr, 2013 U.S. Dist. LEXIS 74014 (WD WA, May 24, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 74091, April 23, 2013) and ordered that plaintiff file an amended complaint supporting his claim that Christian prisoners are provided a sponsor and religious services, while Muslim and other prisoners are not.

In Dowdy-El v. Caruso, 2013 U.S. Dist. LEXIS 73612 (ED MI, May 24, 2013), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 188171 (July 24, 2012) and allowed a class action to proceed by Muslim inmates challenging provision of a halal diet and the impact of the work-release program on ability to attend Friday afternoon Jum'ah prayer services. The court entered judgment (without class certification) requiring plaintiffs be able to participate in Eid feasts when they have conflicting work detail.

Hawaii Appeals Court Rejects Free Exercise Defense To Marijuana Charges

In State of Hawai's v. Harris, (HI App., May 20, 2013), the Hawaii Intermediate Court of Appeals rejected a free exercise of religion defense raised by the president of Sacred Truth Mission church to drug charges.  A greenhouse next to the church contained 60 marijuana plants. Defendant Nancy Harris said she is a Rastafarian who uses marijuana for religious purposes. The court also rejected Harris' privacy, equal protection and void-for-vagueness defenses.

Greece Appoints Chaplains To Teach Qur'an In Greek In Thracian Schools and Mosques

OnIslam reports today that in Greece the government-- in a controversial move-- has appointed 90 chaplains to teach the Qur’an in Greek to minority children at mosques and state schools in Western Thrace.  About one-third of Western Thrace's population is Muslim.  Most are of Turkish origin. Others are Pomaks and Romas. The chaplains appointed must be Greek citizens and members of the minority group they are teaching. This follows passage last January of the so-called "240 Imams Law" which provides officials serving in Western Thracian mosques will be appointed by a board of 5 persons including Christian Greek citizens. The law was strongly opposed by the Turkish minority, who were not consulted in its drafting.

Activist Alton Lemon, of "Lemon Test" Fame, Dies At 84

The New York Times reports today on the death earlier this month of Alton T. Lemon, first-named plaintiff in the famous 1971 Supreme Court case of Lemon v. Kurtzman. Lemon was a civil rights activist who objected to state aid to parochial schools. He was the first African-American president of the Ethical Humanist Society of Philadelphia. The lawsuit which developed the test generally used to decide Establishment clause cases was brought by six religious, civil rights and educational groups and two other taxpayers as well. Mr. Lemon, who was 84 years old when he died on May 4, was a graduate of Morehouse College and the University of Pennsylvania. He served in the army and later worked in a series of government jobs.  He was also active in the NAACP and the ACLU.

Full 10th Circuit Hears Oral Arguments In Hobby Lobby Case

Yesterday, in the most prominent of the many cases filed by small businesses challenging the Affordable Care Act contraceptive coverage mandate, an 8-judge en banc panel of the U.S. 10th Circuit Court of Appeals heard arguments in  Hobby Lobby Stores Inc. v. Sebelius. In an unusual procedure the court previously decided to hear the case en banc without it first being heard by a 3-judge panel. (See prior posting.) While the 10th Circuit does not make audio recordings of oral arguments available, AP reported on the arguments.  Hobby Lobby's attorney, citing the Supreme Court's Citizen's United case, argued that corporations have protected religious liberty rights. He said that Hobby Lobby is a "profit-making company, yes, but also a ministry."  The Justice Department argued: "If you make an exemption for the employer, it comes at the expense of the employee" who is unable to get health care coverage.

Muslim School Can Maintain RLUIPA Substantial Burden and Establishment Clause Claims

Muslim Community Association of Ann Arbor v. Pittsfield Charter Township, (ED MI, May 22, 2013), is a suit by a pre-K -12 Islamic school challenging the refusal of a township board to approve a rezoning request to allow it to use property it purchased for a new school and community center. Plaintiff claimed that the rezoning denial was motivated in part by anti-Muslim sentiment. The court dismissed plaintiff's RLUIPA limitations and exclusion claim, its free exercise, freedom of speech and association, and 14th Amendment claims and comparable claims under the Michigan constitution However it permitted plaintiff to move ahead with its RLUIPA discrimination and substantial burden claims and its Establishment Clause claim against defendants in their individual capacities.

Catholic Religious Order Reaches $16.5 Million Bankruptcy Settlement With Abuse Victims

Today's Chicago Tribune reports that a Catholic religious order now in Chapter 11 bankruptcy proceedings-- the Edmund Rice Christian Brothers North American Province-- has agreed to a $16.5 million settlement with 400 priest sexual abuse claimants nationwide.  The order also agreed to enforce a zero-tolerance policy for brothers accused of sexual abuse. Earlier this month, frustrated with the inability to reach a settlement in bankruptcy court, 31 Chicago men who were victims of abuse by members of the Order filed suit in state court. (See prior posting.)

Boy Scouts Approve Membership For Gays

The Boy Scouts of America announced that its National Council has approved a Membership Standards Resolution removing the restriction on gays becoming scout members. However the ban on gays serving as scout leaders remains.  Yesterday's BSA press release said:

Today, following this review, the most comprehensive listening exercise in Scouting's history the approximate 1,400 voting members of the Boy Scouts of America's National Council approved a resolution to remove the restriction denying membership to youth on the basis of sexual orientation alone. The resolution also reinforces that Scouting is a youth program, and any sexual conduct, whether heterosexual or homosexual, by youth of Scouting age is contrary to the virtues of Scouting. A change to the current membership policy for adult leaders was not under consideration; thus, the policy for adults remains in place. The BSA thanks all the national voting members who participated in this process and vote.

According to AP, some 61% of the members of the National Council who cast a ballot voted in favor of the Resolution. In a Points of Clarification memo, the Scouts say:

Some have asserted that the proposed change for youth runs counter to values of and raises concerns among Scouting's religious chartered organizations. We are unaware of any major religious chartered organization that believes a youth member simply stating he or she is attracted to the same sex, but not engaging in sexual activity, should make him or her unwelcome in their congregation.

In a statement issued last month, the Mormon Church-- the largest sponsor of scout troops in the country-- indicated its approval of the Scouts' new approach. But other denominations are split on the issue. (See prior posting.)  Southern Baptist leaders have expressed strong opposition to the change. Scout membership standards still require scouts to "subscribe to and abide by the precepts of the Declaration of Religious Principle (duty to God)."

Houston Police Sued By Street Preacher

On Wednesday the Thomas More Law Center announced that it has filed a federal civil rights action on behalf of a Houston, Texas Christian street preacher who was arrested three different by Houston police. According to the press release:

[David] Allen’s three arrests occurred while he was preaching the Gospel message against the sins of abortion, homosexuality, and adultery on public sidewalks in Houston, Texas.  His preaching included donning a wool prayer shawl called a “Tallit” and sounding a ram’s horn known as a “Shofar”.

The complaint (full text) in  Allen v. City of Houston, (SD TX, filed 5/15, 2013) alleges violation of plaintiff's free exercise, free speech, and 4th Amendment rights. The Examiner reports on the lawsuit.

Court Reconsiders Ripeness Holding In Affordable Care Act Case

In March, a Pennsylvania federal district court dismissed on ripeness grounds a challenge to the Affordable Care Act contraceptive coverage mandate brought by the religiously-sponsored Geneva College. (See prior posting.) Now, however, in Geneva College v. Sebelius, (WD PA, May 8, 2013) the court has granted Geneva College's motion for reconsideration and decided the case is ripe because of the short time frame it has to negotiate the terms of student health insurance plans for the coming academic year. The court said:

Geneva’s ability to negotiate is fundamentally impacted by the final rules and the proposed rules, none of which alleviate its religious objections to the mandate. Geneva cannot, therefore, simply carry on as though nothing will happen.

Then the court went on to deny the government's motion to dismiss free exercise, RFRA and Administrative Procedure Act claims, but did dismiss without prejudice Establishment Clause and free speech claims. It dismissed with prejudice plaintiffs' due process claims. In making these rulings the court relied largely on its opinion in March relating to claims of a private business and its owners, all of whom were co-plaintiffs with Geneva College. IFA Webnews reported yesterday on the decision.

Pussy Riot Band Member Denied Parole After She Goes On Hunger Strike

Reuters and The Guardian reported yesterday that in Russia, Pussy Riot punk rock band member Maria Alyokhina who is serving a two-year jail sentence for the group's anti-Putin  protest performance in Moscow's Christ the Savior Cathedral (see prior posting) has now gone on a hunger strike.  She is protesting a court's refusal to allow her to be personally present at her parole hearing. She was only allowed to attend by video link, and had to file all motions by fax. In protest she also barred her lawyers from representing her further during the hearing. According to Radio Free Europe, the parole hearing resumed today, with a court-appointed lawyer representing Alyokhina. The court, in the Russian town of Berezniki then denied her parole request.

Faith Healing Couple Charged With 3rd Degree Murder In Death of Second Child

UPI reports that in Philadelphia, prosecutors yesterday charged Catherine and Herbert Schaible with third degree murder in the faith healing death of their 7-month old son who died of bacterial pneumonia and dehydration. (See prior posting.)  The charges came after the medical examiner ruled Tuesday that the death was a homicide. The couple had previously been convicted of manslaughter and sentenced to 10 years' probation in the death of another of their children for whom they failed to seek medical treatment. The couple belong to the First Century Gospel Church which teaches that illness is to be healed through prayer.

7th Circuit Hears Oral Arguments In 2 Contraceptive Coverage Mandate Cases

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in two cases challenging the Affordable Care Act contraceptive coverage mandate.  One was Korte v. U.S. Department of Health and Human Services (Audio of the full oral argument).  In the case, an Illinois federal district court denied a preliminary injunction sought by a for-profit construction business and its controlling shareholders in a free exercise challenge to the contraceptive coverage mandate under the Affordable Care Act.  (See prior posting.) The 7th Circuit then issued an injunction preventing enforcement while the appeal was pending. (See prior posting.) Reporting on yesterday's arguments, the Chicago Tribune said:

[I]n an unexpected twist ... the lawyer for the U.S. government argued that accommodating the business owners' religious beliefs could violate the First Amendment as well.... Alisa Klein, an attorney for the U.S. Department of Justice, said allowing a company to impose a religious framework on a diverse workforce would amount to fostering or enabling religious practice.

The second case argued yesterday was Grote v. Sebelius. (Audio of the full oral argument.) In the case 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 mandate. (See prior posting.) The 7th Circuit in this case also issued an injunction preventing enforcement while the appeal is pending. (See prior posting.)

Arizona State Legislator Objects To Invocation Delivered By Atheist House Member

AP today reports on an unusual controversy in Arizona over the opening prayer offered by one member of the state House of Representatives.  Members of the House rotate in offering the invocation. On Tuesday it was Rep. Juan Mendez's turn.  With members of the Secular Coalition for Arizona in the visitor's gallery, Mendez, an atheist, asked House members not to bow their heads but to instead look around at each other "sharing together this extraordinary experience of being alive and of dedicating ourselves to working toward improving the lives of the people of our state." The next day, Rep. Steve Smith complained that Mendez's remarks did not qualify as a prayer. He asked other House members to join him in a second prayer in repentance for there not being one the prior day. Smith said that Mendez's remarks were analogous to someone leading the Pledge of Allegiance by  pledging "I love England."

Texas Legislature Passes Bill On Winter Holidays In Schools

On Monday, the Texas legislature gave final passage and sent to the governor for his signature HB 308 that attempts to protect public schools' teaching about Christmas and Hanukkah.  The bill provides:

(a) A school district may educate students about the history of traditional winter celebrations, and allow students and district staff to offer traditional greetings regarding the celebrations, including: (1)"Merry Christmas"; (2)"Happy Hanukkah"; and (3)"happy holidays."

(b) Except as provided by Subsection (c), a school district may display on school property scenes or symbols associated with traditional winter celebrations, including a menorah or a Christmas image such as a nativity scene or Christmas tree, if the display includes a scene or symbol of: (1) more than one religion; or (2) one religion and at least one secular scene or symbol.

(c) A display relating to a traditional winter celebration may not include a message that encourages adherence to a particular religious belief.

National Post reports on the bill's passage.

Arizona Legislature Gives Final Passage Expansion of Sate RFRA; 2 Other Bills Near Final Legislative Action

In Arizona yesterday, the state Senate gave final passage, and sent to the Governor for her signature, SB 1178, which significantly expands Arizona's Religious Freedom Restoration Act. The bill allows a person whose religious exercise "is likely to be burdened" to sue because of the impending violation, without waiting for the infringement to actually occur.  The bill also allows RFRA to be asserted whenever state action burdens religion, even if the state is not a party to the litigation. The Center for Arizona Policy has additional background information on the bill. AP reports on the Senate's action on SB 1178, as well as on two other bills that are nearing final passage-- HB 2446 (bill status and text) that expands the property tax exemption to cover certain vacant land held by churches for expansion, and HB 2645 (bill status and text) that exempts church pre-schools from the requirements of unemployment compensation tax.

British Court Orders Mosque To Vacate Site and Remove Buildings

Today's Newham Recorder reports on the series of events that has led a High Court judge in Britain to order the Abbey Mills Mosque in the London borough of Newham to stop using a former chemical works site as a place of worship, and to remove all buildings used for worship at the site, dig up an existing parking lot and remove all debris. The Anjuman-E-Islahul-Mislimeen Trust bought the site in 1996, and since then it has gone through a process of unauthorized development. The site is currently used by 3,000 worshipers.  Previously an enforcement order gave the Trust two years to bring the site into conformity with the Newham Borough Council's planning policy.  In response, the Trust asked the Council for permission to build a larger permanent mosque with capacity of 9,000. Council refused that request, and the refusal is now on appeal.  In the meantime, the court, ruling that the Trust had failed to meet its obligations, has issued the injunction to vacate the site.

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.