British Soccer Player Sentenced To 3 Months For Anti-Muslim Rant On Twitter

In Britain on Wednesday, a player on the Witton Albion Football Club was sentenced to 3 months in jail for a drunken anti-Muslim rant on Twitter in the wake of the May murder of British soldier Lee Rigby.  The Northwich Guardian and Irish Mirror report that footballer Shaun Tuck sent out a series of Tweets over a number of hours urging people to "‘bomb and gas every mosque in England." The Tweets were removed several hours later.  In sentencing Tuck for violations of the Communications Act, the court said:  "These messages were posted during a period of heightened racial tension following the brutal and public slaying of Drummer Lee Rigby at a time when community leaders, religious leaders, police and the victim’s family were calling for calm."

Swedish Court Allows Religious Objectors To Opt Out of High School Dance Instruction

In Sweden, the Administrative Court of Appeal (Kammarrätt) has ruled in favor of a family which on the basis of their Laestadian religious beliefs object to the dance component in their daughters' physical education course. Laestadianism is a conservative Lutheran movement.  As reported by The Local earlier this week, Swedish education law provides that schools should develop their program to permit students to participate regardless of their religious beliefs. Under the court's decision, the family can now opt out of the otherwise mandatory part of the physical education course.

4th Circuit Rejects Religion-Based Challenges To Affordable Care Act Provisions and Upholds Employer Mandate

In Liberty University, Inc. v. Lew, (4th Cir., July 11, 2013), the U.S. 4th Circuit Court of Appeals, in addition to broadly upholding the constitutionality of the Affordable Care Act's employer mandate (see Reuters coverage), rejected free exercise, RFRA, Establishment Clause and equal protection challenges to other provisions of the Act.  It held that:

Plaintiffs present no plausible claim that the Act substantially burdens their free exercise of religion, by forcing them to facilitate or support abortion or otherwise.  

The court also rejected challenges to the two narrow religious exemptions in the ACA:.

The first exemption Plaintiffs challenge is the individual mandate’s religious conscience exemption. See 26 U.S.C. § 5000A(d)(2)(A). Plaintiffs maintain that this exemption discriminates against their religious practice by applying only to sects that conscientiously oppose a all insurance benefits, provide for their own members, and were established before December 31, 1950. The religious conscience exemption adopts an exemption of the Social Security Amendments of 1965 under 26 U.S.C. § 1402(g), which courts have consistently found constitutional under the Establishment Clause and the Fifth Amendment.....

The second individual mandate exemption challenged by Plaintiffs is the health care sharing ministry exemption. See 26 U.S.C. § 5000A(d)(2)(B). Plaintiffs maintain that it unconstitutionally selects an arbitrary formation date of December 31, 1999 as the eligibility cutoff. But even if the exemption’s cutoff date is arbitrary, it is not unconstitutional. For neither the cutoff’s text nor its history suggests any deliberate attempt to distinguish between particular religious groups. Accordingly, the cutoff need only satisfy the Lemon test.

Finally the court refused to consider plaintiffs' newly-added challenge to the more-recently adopted contraceptive coverage mandate because the issue had not been raised previously in the case.

Russian Supreme Court Upholds Hijab Ban In Region's Schools

Russia's Supreme court yesterday affirmed a lower court decision upholding standards for school students' appearance adopted last October in the region of Stavropol. The regulations ban the wearing of the hijab (headscarf) by Muslim school girls.  The Moscow Times and RIA Novosti report that the lawsuit was filed by members of the Muslim community who claim the regulation violates their constitutionally protected freedom of conscience and religion, and forces high school girls to either transfer to a religious school or study at home. The lower court concluded that the regulations were designed to promote equality among students of different denominations and faiths. The Supreme Court agreed, holding that the rules do not violate freedom of religion or infringe on the right to an education.

British Appeals Court Holds Christian B&B Owner Illegally Discriminated Against Gay Couple

In Black v. Wilkinson, (EWCA, July 9, 2013), Britain's Court of Appeal held that the Christian owner of a bed and breakfast operated from her home violated he Equality Act (Sexual Orientation) Regulations 2007 by limiting her two double rooms to married heterosexual couples.  The B&B had a total of 3 rooms that were available for guests. The suit was brought by a gay couple who were turned away after they had made a reservation and submitted a deposit.  Master of the Rolls Lord Dyson concluded that these actions amounted to both direct and indirect discrimination.  He added:

It is clearly established that, as a matter of general principle, (i) the right of a homosexual not to suffer discrimination on the grounds of sexual orientation is an important human right (article 8 and 14), and (ii) the freedom to manifest one’s religion or belief under article 9(1) is also an important human right.... Neither is intrinsically more important than the other. Neither in principle trumps the other. But the weight to be accorded to each will depend on the particular circumstances of the case.....

In a press release, the Christian Institute (which funded the B&B owner's appeal)  however pointed to language in Lord Dyson's opinion that led it to conclude there was still a possibility in future cases for some B&B's to justify restricting rooms to married couples.

Hopi Tribe Sues Navajos Over Access To Religious Sites

The Verde Independent reported yesterday on a lawsuit filed in federal district court in Arizona by the Hopi Indian Tribe against the Navajo Nation over access to Navajo land by Hopi religious practitioners.  A 2006 agreement between the two tribes purporting to settle a decades-old dispute permits members of one tribe to enter the land of the other without a permit for religious practices. In addition Hopis were given the right to collect 18 eaglets from Navajo land each year.  However now there is a dispute over whether Hopis may access religious shrines that are on specific "allotments"-- parcels held by the federal government for individual Navajos. The Hopis claim that the agreement allows them to access sites for the sacred gathering of golden eagles even if they are within allotments.  The Navajos say that allotments are off limits to the Hopis. The issue is complicated by the fact that the map that was part of the 2006 agreement is considered confidential and was filed with the court under seal.

Wisconsin Supreme Court Dismisses As Moot Appeal Seeking Recognition of "Mature Minor" Doctrine For Religious Objections To Medical Treatment

In a 4-3 decision in Dane County v. Sheila W., (WI Sup. Ct., July 10, 2013), the Wisconsin Supreme Court dismissed as moot an appeal by a Jehovah's Witness asking the court to accept the "mature minor" doctrine as part of Wisconsin law. The doctrine permits older minors who can demonstrate sufficient understanding and appreciation of the consequences of their decision to independently make medical treatment decisions involving their own care, without parental consent. In this case, a trial court had appointed a temporary guardian for a 15-year old after neither she nor her parents would consent to a needed blood transfusion. The minor sought the ruling so she can make future decisions on her own to refuse blood transfusions. Writing for the 3 dissenters, Judge Gableman said: "this court has a responsibility to decide matters of great public importance that are likely to recur but evade appellate review." AP reports on the decision.

Challenger To County Commission Invocations Cannot Proceed As "Jane Doe"

In Doe v. County of Franklin, Missouri, (ED MO, July 3, 2013), a Missouri federal district court refused to allow plaintiff, who is challenging Christian invocations at County Commission meetings (see prior posting), to continue to pursue the case under a pseudonym. Plaintiff claimed she will be harassed and driven from the community if her name is made public. The court held, however:

plaintiff’s concerns do not overcome the constitutionally-embedded presumption of openness in judicial proceedings.  Plaintiff has availed herself of the court system and in doing so, she has invited public scrutiny of her claims. And as noted, a hostile public reaction and the prospect of embarrassment are insufficient to justify proceeding anonymously.... Finally, plaintiff’s continued anonymity will jeopardize defendants’ legitimate concern that they will be unable to engage in meaningful discovery to explore the factual basis of plaintiff’s allegation that she was offended by defendants’ conduct.

Kosher Certifiers Tell ICANN That ".kosher" gTLD Should Be Rejected Along With ".halal"

As part of the process being followed by the Internet Corporation for Assigned Names and Numbers (ICANN) in approving numerous new generic top level domains (gTLD), ICANN receives advice from its Governmental Advisory Committee (GAC).  As previously reported, the governments of several Islamic countries have raised concern about gTLDs that have religious connotations. An April 11 communique from GAC (full text) reflects some of these concerns:

The GAC recognizes that Religious terms are sensitive issues.  Some GAC members have raised sensitivities on the applications that relate to Islamic terms, specifically .islam and .halal.  The GAC members concerned have noted that the applicataions for .islam and .halal lack community involvement and support. It is the view of these GAC members that these applications should not proceed.

 Earlier this week, The Domains reported that now the 5 largest organizations that certify food as kosher have written a joint letter to ICANN complaining

that the GAC, and ICANN in response, rightly raised concerns about the .halal gTLD application without raising those same concerns about the .kosher application....

 The .kosher gTLD application raises the same religious sensitivities referenced in the GAC Beijing Communiqué related to the .halal gTLD application. 

Therefore, it is appropriate for ICANN to provide equal treatment of the .halal and .kosher gTLD applications by denying both applications.

The application for the .kosher gTLD indicates that it is designed to promote a competing kosher certification agency that is not part of the big 5--  OK Kosher Certification-- and its clients.

Yeshiva High School Abuse Victims of 1970's and '80's Sue Yeshiva University

As reported by the New York Times, on Monday 19 former students at Yeshiva University High School for Boys filed a federal lawsuit against Yeshiva University and others seeking hundreds of millions of dollars in compensatory and punitive damages for alleged sexual abuse by two rabbis formerly at the high school-- the principal and a Talmud teacher. The accused abusers were not reported to authorities, but instead were allowed to leave the school quietly. Recently-retired former Yeshiva University president Rabbi Norman Lamm has apologized for not doing more. (See prior posting.) The 148-page complaint (full text) in Twersky v. Yeshiva University, (SD NY, filed 7/8/2013) alleges:

[F]or several decades, the administrators of Yeshiva University (“YU”) and The Marsha Stern Talmudical Academy− Yeshiva University High School for Boys (“YUHS”), including Rabbi Lamm himself, enclosed themselves in a “cocoon of callousness” by allowing several known sexual predators to assume and remain in exalted positions in YUHS’s administration and faculty.

The complaint alleges causes of action for fraudulent inducement, negligent infliction of emotional distress, deceptive business practices, false advertising, negligent misrepresentation, negligent supervision and retention, and violation of Title IX of the federal Civil Rights Act.  Reporting on the filing of the lawsuit, The Forward quoted one of the plaintiffs who said: "It was necessary to file the suit because there was no proper response from Yeshiva University to any of our claims and to any of our pain. They just wouldn’t listen." [Thanks to Scott Mange for the lead.]

Outsourcing Of Alternative School To Christian Institution Violates Establishment Clause

In Kucera v. Jefferson County Board of School Commissioners, (ED TN, July 9, 2013), a Tennessee federal district court held that the Jefferson County (TN) school board violated the Establishment Clause when, for budgetary reasons, it eliminated the county Alternative School and instead contracted with Kingswood School, a Christian institution, to operate the county's program for students who had been suspended or expelled from their regular school.  According to the court:

The average student that attended Kingswood would arrive on campus and see a church within the grounds. She would then see an intake staff member who was also an ordained minister. After intake, the student would attend secular classes, but would take home report cards branded with Christian language and symbols.... [S]he would need to have her parents routinely sign and return Family Feedback Forms that also contained bible verses. If she visited Kingswood's  website, she would be greeted by the phrases "Christian environment" and "Christian education" among others. Benefactors would receive fundraising correspondence that contained Christian references and iconography, and assemblies would be held in the campus church.

... [T]he facts plainly establish that Kingswood is a religious institution-- a fine institution-- but an institution that should have never sought to operate a public alternative school as part of its ministry....The appearance of governmental endorsement of the Christian faith is too pronounced and non-believers, or students of a different faith, would likely feel divorced from Kingswood, a well-intentioned, but overtly-Christian school.

The principal and a teacher who lost their jobs when the county alternative school closed were awarded damages equal to their lost wages for the year the alternative school closed, plus attorneys fees. The school board was also permanently enjoined from contracting with Kingswood or another religious entity for the operation of its alternative school. (See prior related posting.)

Abuse Suit Against Camden Diocese Survives Dismissal Motion

In Shanahan v. Diocese of Camden, (D NJ, June 27, 2013),  a New Jersey federal district court refused to dismiss a suit against the Catholic Diocese of Camden brought by plaintiff who claims that she was sexually abused as a child in 1980-1981 on 10 o 15 occasions by an ordained Catholic priest, Fr. Thomas Harkins. The suit claims that the Diocese is liable under New Jersey’s Child Sexual Abuse Act; for negligent retention and supervision; and for breach of fiduciary duty. Courthouse News Service reports on the decision.

Catholic Health Association Accepts Obama Administration Compromise On Contraceptive Coverage Mandate

AP reports that the Catholic Health Association (CHA)-- the umbrella group for 600 Catholic hospitals and 1400 other Catholic health facilities-- has concluded that it can accept the Obama administration's compromise under the Affordable Care Act on contraceptive coverage for employees.  The compromise as set out in final rules issued on June 28 provides that religiously sponsored hospitals and similar facilities will not need to arrange or pay for coverage to which they object. Instead coverage will be separately provided to employees directly from insurance companies and plan administrators. In its statement, CHA acknowledged that its position is more accepting of the compromise that the U.S. Conference of Catholic Bishops has been. (USCCB July 3 statement).

Egypt's Interim Constitutional Declaration Shows Influence of Salafist Al-Nour Party

According to Ahram Online, on Monday night Egypt's new interim president Adly Mansour issued a 33-article  Interim Constitutional Declaration (full text in Arabic) that will remain in place during the current transitional period. Al-Monitor has published an analysis of the document's provisions. Here is what it has to say about the document's treatment of religion:

The constitutional declaration shows the strong leverage the Salafist Al-Nour party has on the transitional process.... [Three provisions of the former constitution] have been merged into a unique, new, Article 1...: 

“The Arab Republic Of Egypt is a state whose system is democratic, based on the principle of citizenship; Islam is the religion of the state; Arabic is its official language; and the principles of Islamic Sharia — which include its general evidences, its fundamental and jurisprudential rules, and its recognized sources in the doctrines of the people of the Sunna and Jam’aa (i.e., Sunnism) — are the main source of legislation.”...

...[T]he Salafists managed to keep the restriction of freedom of religious worship to the “three celestial religions” in Article 7 (i.e., Christianity, Islam and Judaism), which was not the case under the 1971 Constitution but became so in the 2012 version, under Salafist influence. The 1971 Constitution had also stated that freedom of belief was “absolute,” while the 2012 Constitution and the charter denoted it as “protected.” ...  One thing that has been dropped is the express reference to Al-Azhar’s role in expressing a supposedly non-binding opinion on Sharia matters pertaining to draft legislation....

The declaration retains the more flexible ban on parties that “discriminate on the basis of ... religion,” but does not return the outright ban on religion-based parties that existed in the 1971 Constitution. This is another move to accommodate Islamists into the transition.

ACLU Moves To Challenge Several Same-Sex Marriage Bans

The ACLU yesterday announced a broad initiative to obtain a U.S. Supreme Court ruling on the constitutionality of same-sex marriage, in the wake of the Court's dismissal on standing grounds of the California Proposition 8 appeal. The organization said in part:

Even before today's announcement of the ACLU's federal marriage lawsuits, there were seven cases with federal marriage claims pending all around the country. Today we are adding three more cases to this mix in order to ensure that strong, well-resourced cases are presented to the federal appeals courts most likely to give the issue a fair hearing.

One of the new cases is Whitewood v. Corbett, (MD PA, filed 7/9/2013) (full text of complaint) challenging Pennsylvania's refusal to permit same-sex marriages or recognize same-sex marriages from other states. In North Carolina, the ACLU is asking North Carolina's Attorney General to allow plaintiffs to add an additional claim challenging the state's same-sex marriage ban to an already pending lawsuit challenging the state's ban on second parent adoptions. (ACLU- NC press release). Finally, the Virginia ACLU announced a planned lawsuit, to be brought with Lambda Legal, challenging constitutional and statutory bans in Virginia on same-sex marriage.

European Court of Human Rights Protects Church Autonomy, Allowing Rejection of Priests' Trade Union

Yesterday in Sindicatul "Pastorul Cel Bun" v. Romania, (ECHR, July 9, 2013), the Grand Chamber of the European Court of Human Rights in a 11-6 decision upheld a Romanian County Court's denial of registration to a trade union formed  by priests of the Romanian Orthodox Church. The majority opinion, finding a permissible restriction on the right to join trade unions protected in Art. 11 of the European Convention on Human Rights, said in part:

136.... Where the organisation of the religious community is at issue, Article 9 of the Convention [freedom of thought, conscience and religion] must be interpreted in the light of Article 11, which safeguards associations against unjustified State interference.... [T]he right of believers to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is an issue at the very heart of the protection which Article 9 affords.

137.  In accordance with the principle of autonomy, the State is prohibited from obliging a religious community to admit new members or to exclude existing ones. Similarly, Article 9 of the Convention does not guarantee any right to dissent within a religious body; in the event of a disagreement over matters of doctrine or organisation between a religious community and one of its members, the individual’s freedom of religion is exercised through his freedom to leave the community....

165.... Respect for the autonomy of religious communities recognised by the State implies, in particular, that the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity.....

168.... [T]he County Court was simply applying the principle of the autonomy of religious communities; its refusal of the applicant union’s registration for failure to comply with the requirement of obtaining the archbishop’s permission was a direct consequence of the right of the religious community concerned to make its own organisational arrangements and to operate in accordance with the provisions of its Statute....

170.... the Statute of the Romanian Orthodox Church does not provide for an absolute ban on members of its clergy forming trade unions to protect their legitimate rights and interests. Accordingly, there is nothing to stop the applicant union’s members from availing themselves of their right under Article 11 of the Convention by forming an association of this kind that pursues aims compatible with the Church’s Statute and does not call into question the Church’s traditional hierarchical structure and decision-making procedures.....

The Court also issued a press release summarizing the decision.  A Becket Fund press release has more information on the case.

ABA Journal Calls For Nominations For 100 Best Legal Blogs

The ABA Journal yesterday invited nominations for its 2013 list of the 100 Best Legal Blogs.  It also encouraged bloggers to tell their readers about the competition.  Religion Clause has made the top 100 list four times in the last six years.  Any readers who might like to nominate Religion Clause (or some other legal blog) for the 2013 Top 100 list can do so at this link which provides a form to submit a "Friend of the Blawg Brief."  Nominations are due no later than August 9. Thanks in advance to any readers who find Religion Clause sufficiently valuable to nominate it.

Tax Evader, Claiming Religious Justifications, Sentenced to Over 8 Years In Prison

In Oregon yesterday, a federal judge sentenced a software entrepreneur to 8 years and 1 month in prison (followed by 3 years of supervised release) for tax evasion involving $7.1 million in taxes and penalties owed to the federal government. The Oregonian reports that defendant Chester Evan Davis invoked religious justifications for his refusal to pay taxes, saying:

My hands, my feet, my words, my ideas, my labor, my actions are all and have been given to the Lord for his glory. [Submitting a tax return would] put the God of this state above my God.

Davis hid assets from the government, attempted to file harassing liens against federal officials and tried to obtain arrest warrants against IRS employees. Much of the earnings of Davis' company came from contracts with the federal government.

Court Says It Lacks Jurisdiction To Stop Gitmo Force Feeding As Ramadan Nears, But President Could End Practice

In Dhiab v. Obama, (D DC, July 8, 2013), a D.C. federal district court denied for lack of jurisdiction a Guantanamo Bay detainee's petition (see prior posting) seeking to enjoin the government from continuing to force feed him, especially during the Ramadan fast period.  However, in denying the preliminary injunction, District Judge Gladys Kessler said:

Even though this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner's request, there is an individual who does have the authority to address the issue. In a speech on May 23, 2013, President Barack Obama stated "Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. . . Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that."... 

Article II, Section 2 of the Constitution provides that "[t]he President shall be the Commander in Chief of the Army and Navy of the United States ... " It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority-- and power-- to directly address the issue of force-feeding of the detainees at Guantanamo Bay.

AP reports on the decision.

Missouri Diocese Settles Priest Abuse Case On Eve of Trial

According to yesterday's Kansas City Star, the Kansas City-St. Joseph Catholic Diocese yesterday settled a wrongful death lawsuit for $2.25 million as jury selection was under way in a Missouri state court in a suit by parents of sex abuse victim Brian Teeman who committed suicide at age 14.  The suicide in November 1983 followed repeated sexual abuse by Monsignor Thomas J. O’Brien who allegedly forced four altar boys to perform sexual acts in the sacristy at Nativity of Mary in Independence, Missouri. (Background.) As part of the settlement, the diocese will also place a bench honoring Teeman on the grounds of Nativity of the Blessed Virgin Mary Catholic Church in Independence. The diocese had planned to defend on the grounds that it did not know that Teeman had been abused or had committed suicide, and also on statute of limitations grounds. The Diocese yesterday issued a statement (full text) announcing the settlement.

President Sends Ramadan Greetings To Muslims In U.S. and Around the World

Yesterday the White House released a statement (full text) extending Ramadan greetings from the President and First Lady to Muslim communities in the U.S. and around the world. Ramadan begins today.  The President said in part:

In the United States, Ramadan is a reminder that millions of Muslim Americans enrich our nation each day—serving in our government, leading scientific breakthroughs, generating jobs and caring for our neighbors in need.  I have been honored to host an iftar dinner at the White House each of the past four years, and this year I look forward to welcoming Muslim Americans who are contributing to our country as entrepreneurs, activists and artists.

USCIRF Calls On Administration To Raise Religious Persecution Concerns With Chinese Officials

As reported by Reuters, this week top U.S. and Chinese officials will meet in Washington for the annual U.S.-China Strategic and Economic Dialogue.  The annual event began five years ago as a way for the two countries to manage their complex relationship.  Yesterday the U.S. Commission on International Religious Freedom issued a press release calling on U.S. officials to raise with the Chinese the cases of prominent religious prisoners and human rights lawyers in China. USCIRF said in part:

The continued confinement of thousands of political and religious prisoners in China violates that nation’s international obligations and its constitutional protections for human rights and religious freedom.

The USCIRF release highlights the cases of nine individuals-- Christian, Buddhist, Muslim and Falun Gong-- that it also featured in its 2013 Annual Report.

Justice Department Invokes Employer Mandate Delay In Argument For Dismissal of Liberty University's ACA Challenge

In May, the 4th Circuit heard oral arguments in Liberty University, Inc. v. Lew (see prior posting), a broader religious freedom challenge to the Affordable Care Act than most that are still pending. The suit claims that the ACA 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. It also more narrowly challenges the contraceptive coverage mandate.  As previously reported, on July 2 the Treasury Department and the White House announced that the Administration was postponing enforcement of the Affordable Care Act's employer mandate until January 2015.  On July 3, the Justice Department filed a letter (full text) with the 4th Circuit reading in part:

Plaintiff ... has brought a pre-enforcement challenge to the large-employer tax that is authorized by 26 U.S.C. § 4980H. Our supplemental brief explained that this pre-enforcement challenge to Section 4980H is barred by the Anti-Injunction Act, and that it is also speculative whether Liberty University will owe a tax under Section 4980H.

We respectfully advise the Court that, yesterday, the Department of the Treasury announced that Section 4980H, which was due to take effect on January 1, 2014, will not take effect until January 1, 2015.... This one-year delay only underscores that Liberty University’s challenge is unripe.

On July 5, Liberty University filed a response (full text) which reads in part:

Liberty’s challenge to the entire employer mandate is not moot. Even if enforcement were delayed, which it is not, Liberty still must act now to prepare for the implementation of the Act, and that itself is an injury. Regarding the abortifacient mandate, the Final Rules published by the Departments of Labor, Treasury, and Health and Human Services last week made clear the government has no intentions of altering this mandate....

Finally, the reporting delay pertains solely to the penalties imposed pursuant to 26 U.S.C. § 4980H, and not the additional $100 per employee per day penalty from a separate section not subject to this delay. See 26 U.S.C. § 4980D.... 

Liberty Counsel issued a press release summarizing developments from its perspective.

Women of the Wall Supporters Say Israeli Police Violated Court Order In Handling Access To Western Wall

In Israel today, Women of the Wall supporters charge that police have violated a court order (see prior posting) by requiring the egalitarian women's prayer group to conduct their monthly Rosh Hodesh service at a site at the back of the Western Wall plaza instead of allowing them in the women's section closer to the Wall.  The Jerusalem Post reports that the normal women's prayer area was filled with 6 to 7 thousand ultra-Orthodox (haredi) high school girls who arrived ahead of some 250- 300 Women of the Wall supporters in order to block access to the Western Wall. The protesters' transportation was arranged by the United Torah Judaism political party. The two sides in the long-running dispute over whether ultra-Orthodox rabbis will control practices at Judaism's holy site exchanged charges.  Director of the Reform Movement in Israel Rabbi Gilad Kariv who supports WOW said:

[The police] have given a reward to a small group of haredi provocateurs and rabbis who deal in spreading baseless hatred. The Israel Police Force forgot that its job is to defend freedom of religion and prayer at the Western Wall and not to imprison those who are praying behind a police line.

Jerusalem  Deputy Mayor Doytsch who supports the haredi position said in a press release:

the Western Wall is a place that unites and binds all of the Jewish people. It is a great shame that on the New Month of Av a group of strange women come to the Western Wall in order to divide and cause arguments within the people.

Ramadan Begins Tomorrow, At Least For Those Using Astronomical Calculation Method

The Fiqh Council of North America, relying on astronomical calculations, announced that Ramadan begins tomorrow, July 9. Eid al Fitr, marking the end of the month long Ramadan fast will be on August 8. Some Muslims insist on setting the beginning of Ramadan by actual sighting of the new moon instead of by calculations. So in Canada, according to the Brampton Guardian, the Hilal Community of Metropolitan Toronto and Vicinity will follow that practice, while the Islamic Society of North American (ISNA) Canada follows the astronomical calculation method used by the Fiqh Council.

Recent Articles of Interest

From SSRN:

• Paul Benjamin Linton, Religious Freedom Claims and Defenses Under State Constitutions, (June 20, 2013).
• Muhammad Munir, Islamizing Custom or Customizing Islam: The Case of Female Genital Mutilation or Female Circumcision, (June 25, 2013).
• David B. Oppenheimer, Alvaro Oliveira,& Aaron Blumenthal, Religiosity and Same-Sex Marriage in the United States and Europe, (June 29, 2013).
• Samuel Flaks, Law, Religion, and Pluralism: The Thought and Experiences of Nathan Isaacs, (Touro Law Review, Vol. 29, No. 2, 2013).
• Michale J. Perry, Freedom of Conscience as Religious and Moral Freedom, (Journal of Law and Religion, Forthcoming).
• Haider Ala Hamoudi, Repugnancy in the Arab World, (Willamette Law Review, Vol. 48:427, 2012).
• Mark P. Franke, Ijara Under the Bankruptcy Code, (June 20, 2013).
• Dr. Julius B. Bertillo & Dr. Josefina Bertillo Salando, Principles and Practice of Islamic Finance Systems, (June 23, 2013).
• Dr. Julius B. Bertillo, Dr. Josefina Bertillo Salando & Dr. Florabel Ortega Nieva, Global Impact of Islamic Financial Systems in the Arab World, (June 30, 2013).

From SmartCILP:

• Allison M. Dussias, Friend, Foe, Frenemy: The United States and American Indian Religious Freedom, 90 Denver University Law Review 347-431 (2012).

Michigan Federal District Court Preliminarily Enjoins Ban On Health Benefits to Domestic Partners--Claiming Title of First to Cite Windsor

In Bassett v. Snyder, (ED MI, June 28, 2013), a Michigan federal district court issued a preliminary injunction barring enforcement of Michigan's Public Act 297 that prohibits public employers from providing medical and other fringe benefits to same-sex partners of state employees. Finding plaintiffs have standing, the court went on to hold that:

The plaintiffs have stated a viable and likely successful equal protection claim. They have provided strong evidence that the discriminatory classification established by Public Act 297 is not rationally related to a legitimate governmental purpose.

In reaching its conclusion, the court several times cited the then only 2-day old U.S. Supreme Court's decision in United States v. Windsor which struck down the federal Defense of Marriage Act.  This makes it the first case to cite the Windsor opinion, proving inaccurate my earlier posting that awarded the first-to-cite distinction to another Michigan judge in a case denying dismissal of a challenge to Michigan's ban on adoptions by same-sex couples. ACLU issued a press release announcing the decision. [Thanks to Michael Worley for the lead.]

Buddhist Temple Area In India Hit By Terrorist Explosions

Times of India reports that a series of nine terrorist explosions hit the world-famous Buddhist Mahabodhi Temple complex in the Indian town of Bodh Gaya today. Police suspect the  Indian Mujahideen were responsible for the attack in which two tourists, including a monk from Myanmar, were injured.

Recent Prisoner Free Exercise Cases

In Quintero v. Palmer, 2013 U.S. Dist. LEXIS 92831 (D NV, July 1, 2013), a Nevada federal district court permitted a Catholic inmate to proceed (but not jointly with other inmates) with his complaint that group rosary services were not permitted, he was threatened with disciplinary action for writing the local Catholic bishop and that the mail room rejected his subscriptions to two Catholic periodicals.

In Gibson v. Yackeren, 2013 U.S. Dist. LEXIS 92930 (WD NY. June 30, 2013), a New York federal district court allowed an inmate to proceed with his lawsuit charging that the prison's Jewish chaplain wrongly refused to change his religious designation to Judaism, thereby restricting his ability to practice his religion.

In Israel, Ultra-Orthodox Abuse Haredi Military Enlistees

The New York Times yesterday reported on the campaign within the ultra-Orthodox (Haredi) community in Israel to dissuade men from enlisting in the country's military. Traditionalists, feeling pressure from the Israeli government's moves to eliminate large scale haredi draft exemptions, are moving to marginalize and abuse those who have enlisted in existing programs, and to discredit military service. The article, titled Service Brings Scorn to Israel’s Ultra-Orthodox Enlistees reports in part:

Crude, comics-style posters have appeared in recent weeks on billboards across ultra-Orthodox neighborhoods nationwide portraying those soldiers, who volunteered under programs meant to attract Haredim, as fat, bearded, gun-toting caricatures in uniform snatching terrified Haredi children off the streets.....

Brig. Gen. Gadi Agmon, from the Israeli military’s human resources branch, told a parliamentary committee here last week that the well-orchestrated campaign was no less vicious in style than that of Der Stürmer, the Nazi-era propaganda organ notorious for its anti-Semitic caricatures.....

Haredi soldiers have been verbally abused, spit on and humiliated while walking through their neighborhoods all over Israel. Some have been attacked with stones, or their car tires have been slashed. The children of others have been rejected by local educational institutions, and there are growing fears that enlisting could harm the marriage prospects of their siblings.

Thai Anti-Money Laundering Office Issues Freeze On Buddhist Monk's Assets

In Thailand earlier this week, the country's Anti-Money Laundering Office issued an order banning a Buddhist monk and his associates from transferring any assets out of their 16 bank accounts.  According to the Bangkok Post (July 3) and the Huffington Post (July 4), Luang Pu Nen Kham Chattiko, abbot of the Khantitham forest monastery, came under investigation after a widely viewed YouTube video showed him in a private jet wearing expensive accessories. The bank accounts at issue have been used for transactions amounting to 200 million bhat ($6.4 million US) each day. A Facebook group that called for investigation of the monk suspects that he has misused temple contributions.

Spiritual Counselor's Challenge To Fortune Telling Ordinance Dismissed On Ripeness Grounds

In Davis v. City of Selma, (ED CA, July 2, 2013), a California federal district court dismissed on ripeness grounds various challenges to the city of Selma, California's ordinance which requires "Fortune Tellers" to obtain a license in order to provide services within the city.  Plaintiff, a spiritual counselor, initially sought a business license under the Selma Municipal Code ("S.M.C."), but never completed the application process because it was too restrictive.  Instead she sued claiming violations of her rights under the 1st and 14th Amendments and RLUIPA. Dismissing plaintiff's claims, the court said in part:

Plaintiff has not shown intent or a concrete plan to violate the S.M.C., Plaintiff has not been subject to a threat of enforcement, nor has the S.M.C. ever been enforced against anyone that the Court has been made aware of.

Only 5 Days For Lower Court Opinion To Cite SCOTUS Decision On DOMA [Corrected]

It took only 5 days for a lower federal court to become one of the first to cite the U.S. Supreme Court's recent landmark Defense of Marriage Act decision. Relying on language in United States v. Windsor, a federal district court has refused to dismiss a same-sex couple's equal protection challenge to Michigan's ban on adoptions by same-sex couples and its state constitutional ban on same-sex marriage.  In DeBoer v. Snyder, (ED MI, July 1, 2013), a Michigan federal district court said:

Plaintiffs’ equal protection claim has sufficient merit to proceed. The United States Supreme Court’s recent decision in United States v. Windsor ... has provided the requisite precedential fodder for both parties to this litigation. Defendants will no doubt cite to the relevant paragraphs of the majority opinion espousing the state’s “historic and essential authority to define the marital relation.”... 

On the other hand, plaintiffs are prepared to claim Windsor as their own.... And why shouldn’t they? The Supreme Court has just invalidated a federal statute on equal protection grounds because it “place[d] same-sex couples in an unstable position of being in a second-tier marriage.”... Moreover, and of particular importance to this case, the justices expressed concern that ... such discriminatory legislation would ... impair the rights of “tens of thousands of children now being raised by same-sex couples” as well.... This is exactly the type of harm plaintiffs seek to remedy in this case..... [T]his Court cannot say that plaintiffs’ claims for relief are without plausibility.

Yahoo! News reports on the Michigan decision.

CORRECTION: This posting originally indicated that this was the first decision to cite the Supreme Court's Windsor case. As Michael Worley in a comment to this posting indicates, actually the first citation was only 2 days after the SCOTUS decision in a different Michigan federal court opinion on domestic partner benefits.  For details on that case, see this posting.

Canadian Catholic Order Enters $18M Settlement With Abuse Victims

Canadian Press reports that on Wednesday a Quebec Superior Court justice approved an $18 million mediated settlement in a class action against the Congregation of Holy Cross brought by victims of sexual abuse suffered at three now-closed schools in Quebec run by the Catholic order. The abuse dates back as far as the 1950's and continued as late as 2001.  Under the settlement, some 206 victims (and in some cases their parents) will share $13 million. Individuals will receive between $10,000 and $250,000 depending on the type of abuse involved. The remaining $5 million covers attorneys fees and other expenses. The class action was originally filed in 2008.

Russian President Signs Bills Limiting Founders of Religious Organizations; Banning Adoptions By Same-Sex Couples

The media reported this week that Russian President Vladimir Putin has signed two bills into law. The first enacts changes to Article 9 of the law "On Freedom of Conscience and On Religious Associations" to prohibit certain individuals from founding religious organizations.  The ban applies to (1) foreigners or stateless persons who have been declared persona non grata in Russia and (2) individuals who have been involved in activities labeled as extremist by the courts. (Interfax report.)

 A second bill signed by Putin bars same-sex couples from adopting or obtaining custody of children. According to Interfax, the bill is aimed at  preventing the "spiritual suffering and stress, which, according to psychologists, are often experienced by children with same-sex parents."

Wisconsin Supreme Court Upholds Faith Healing Homicide Convictions

In State of Wisconsin v. Neumann, (WI Sup. Ct., July 3, 2013), the Wisconsin Superme Court in a 6-1 decision upheld the second degree reckless homicide convictions of the parents of an 11-year old girl who treated her undiagnosed diabetes with prayer instead of seeking medical treatment. The Court concluded, among other things, that the state statutes gave the parents sufficient notice that their conduct would carry criminal sanctions if their daughter died, despite a statute that protected faith-healing parents from child abuse charges. The court also rejected defendants' complaints regarding jury instructions relating to their sincere religious beliefs. Justice Prosser dissented, saying he was primarily interested in encouraging the bench, bar and legislature to revisit some of the troublesome questions posed by these cases. AP reports on the decision.

4th Circuit En Banc Decides 2 Limited-Service Pregnancy Center Disclaimer Cases

A sharply divided 4th Circuit Court of Appeals sitting en banc yesterday reversed on procedural grounds a district court opinion that invalidated a Baltimore ordinance requiring limited-service pregnancy centers to post disclaimers. The required signs must say that the facility does not provide or make referrals for abortions or certain birth-control services.  In Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, (4th Cir., July 3, 2013), in an opinion joined by 8 of the 12 judges hearing the case, the court said:

We refrain today from evaluating the ultimate merits of the Center’s claims, however, focusing instead on the preliminary errors made by the district court as it rushed to summary judgment. Those errors include the court’s denial to the City of essential discovery, its refusal to view in the City’s favor what evidence there is, and its verboten [sic.] factual findings, many premised on nothing more than its own supposition. In these circumstances, it is fitting to simply vacate and remand for properly conducted proceedings.

Judge Niemeyer wrote a dissent joined by Judges Wilkinson, Shedd, and Agee, saying in part:

Even though the City may have a compelling interest in preventing misrepresentations about abortion, it is not free to impose a requirement of speech on those who do not misrepresent. 

Judge Wilkinson also filed a separate dissent, saying in part:

In a case concerning a law that requires private, noncommercial organizations to convey a government-authored message, one would expect to find at least some acknowledgement of the dangers of state-compelled speech. But one will search the majority’s opinion in vain for any such recognition. Instead, the majority opts to opine on various points of civil procedure, apparently oblivious to the fact that litigation is not an end in itself, but a means of vindicating the substantive values underlying our legal order, among which I had hitherto supposed were the freedoms of conscience and belief.

(See prior related posting.)

A second case decided yesterday involved a Montgomery County, Maryland Resolution requiring limited-service pregnancy centers to post signs saying they do not have a licensed medical professional on staff, and that "the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider."  The 4th Circuit, en banc, in an 11-3 decision, affirmed a district court's preliminary injunction against enforcement of second part of the disclaimer requirement.  In Tepeyac v. Montgomery County, (4th Cir., July 3, 2013), the majority held that the district court applied the proper preliminary injunction standard and did not abuse its discretion.

Judge Wilkinson filed a concurring opinion. Judge Niemeyer filed a dissent that was joined by Judges Shedd and Agee arguing that both parts of the required disclaimer are unconstitutional.

The Washington Post reports on both decisions.

10th Circuit Upholds Constitutionality Of Racial and Religious Violence Ban In Federal Hate Crimes Act

In United States v. Hatch, (10th Cir., July 3, 2013), the 10th Circuit upheld as constitutional under the 13th Amendment the provision of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act that makes it a felony to physically attack a person because of that person’s race, color, religion, or national origin, even where the attack is solely intrastate. In this case, three white men had been charged with kidnapping a disabled Navajo man and branding a swastika into his arm.  The court held:

Congress confined the racial violence provision’s reach to aspects of race as understood in the 1860s when the Thirteenth Amendment was adopted. As to religion and national origin specifically, Congress found that “members of certain religious and national origin groups were . . . perceived to be distinct ‘races’” in the 1860s and therefore sought to protect these categories “at least to the extent such religions or national origins were regarded as races” in the 1860s.... Supreme Court precedent supports this finding.

9th Circuit: U.S. Enforcement of Foreign Award Against Church Is Constitutional

In Ohno v. Yasuma, (9th Cir., July 2, 2013), the 9th Circuit Court of Appeals upheld a California federal district court's enforcement under the Uniform Foreign-Country Money Judgments Recognition Act of a Japanese damage award against a church. The church unsuccessfully claimed that enforcing the award violated the 1st Amendment and was repugnant to public policy. Plaintiff Naoko Ohno was awarded $834,000 in a tort judgment in Japan in a suit in which she alleged that the Saints of Glory Church and its California-based pastor, under whose sway she fell, fraudulently induced her to transfer large sums to the Church at a time that she was depressed and physically ill. The 9th Circuit held that use of U.S. courts to enforce the judgment does not turn the Japanese judgment into state action subject to constraints of the U.S. Constitution, nor is the underlying cause of action repugnant to California public policy.

Delay Of Affordable Care Act Employer Mandate Could Raise Ripeness Issues In Business Challenges To Contraceptive Coverage Mandate

The White House announced yesterday that it is delaying implementation of the Affordable Care Act's employer mandate by one year in order to simplify reporting requirements for businesses.  As reported by the Washington Post, this means that businesses with over 50 employees that do not offer health care insurance meeting federal standards to their employees will not face the $2000 per employee fine until January 2015. The move now raises the question of whether any of the numerous small business lawsuits objecting on religious freedom grounds to complying with the contraceptive coverage mandate might be dismissed on ripeness grounds.  While there is nothing to suggest that the mandate will not ultimately be imposed, it could be tempting to a court to seize on a justiciability rationale instead of wrestling with the difficult free exercise issues posed by the mandate.

UPDATE: The Becket Fund argues that yesterday's policy change has no impact on the contraceptive coverage mandate because it is subject to a separate reporting requirement and excise tax penalty not mentioned in the Treasury Department's statement.

Ugandan Regional King Says Police Violated His Religious Rights In Barring His Visit To Another District

All Africa reported yesterday that in Uganda, Charles Wesley Mumbere who is King of the Rwenzururu region is asking the country's Constitutional Court to interpret Article 37 of the country's Constitution which provides:

Every person has a right as applicable to belong to, enjoy, practise, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others.

Police, afraid of violence between Bamba/Bawisi and the Bakonzo, prevented Mumbere from traveling to the Bundibugyo district where he was scheduled on June 30 to officiate over celebrations to mark the kingdom's peace day - the day the Bakonzo and Bamba broke away from Toro Kingdom. Demonstrations broke out last year when Mumbere visited Bundibugyo and set up shrines there. (Daily Monitor, July 8, 2012).

British Public TV Station Will Broadcast Call To Prayer During Ramadan

Reuters reports that British television's publicly-owned Channel 4 will be the first mainstream national station to broadcast the Muslim call to prayer during the upcoming month of Ramadan.  Beginning July 9, and continuing for the full month of the Ramadan fast, the station will broadcast the call to prayer at 3:00 A.M. A station official said that he particularly wants to give voice to mainstream Muslims after the anti-Muslim backlash that has followed the May killing on a London street of a British Afghanistan War veteran. Channel 4 has a history of controversial programming and expects criticism for this decision.

Gitmo Detainees Seek End To Force-Feeding, Saying It Will Violate Religious Freedom During Ramadan

Four Guantanamo Bay detainees-- all of whom have been cleared for release-- filed a motion on Sunday in their long-pending habeas corpus cases seeking to force the U.S. government to end force-feeding of detainees participating in a hunger strike. (Press Release from Reprieve.) The motion (full text) in Belbacha v. Obama, (D DC, filed 6/30/2013), in addition to broader arguments against force feeding, argues that with the month of Ramadan starting shortly, force-feeding during daylight hours will violate detainees' religious freedom in violation of the Geneva Convention and the Religious Freedom Restoration Act. Reprieve announced Monday that the court has ordered the government to respond to the motion for a preliminary injunction by July 3.

Pro-Life Student Group Sues Over Required Security Fees For Event

A pro-life student group at New York's University of Buffalo filed a federal lawsuit last week challenging the University's policy of requiring student groups sponsoring controversial events to pay for campus police to be  present for security.  The complaint (full text) in UB Students For Life v. Tripathi, (WD NY, filed 6/28/2013), claims that the group's free expression, due process and equal protection rights were infringed when University officials decided that an abortion debate the group was sponsoring might attract hecklers and so required the group to pay nearly $650 to cover the cost of required campus security.  The complaint alleges that

UB policy and practice grants administrators unbridled discretion to deem student organization events “controversial” based on the content or viewpoint of the speech or the actual or potential reactions of listeners.

ADF issued a press release giving additional information about the lawsuit.

Australian MP Faces Online Abuse For Swearing-In As Cabinet Member On Koran

Today's Sydney Morning Herald and the Brisbane Courier Mail report on the abusive reaction on Facebook and Twitter to the swearing in on the Koran of Labor Member of Parliament Ed Husic as Australia's first Muslim frontbencher.  Husic was appointed by Prime Minister Kevin Rudd as Parliamentary Secretary to the Prime Minister and Parliamentary Secretary for Broadband.  While Husic is a non-practicing Muslim, he said it was a straight forward decision to be sworn in on the Koran. Husic is the son of Bosnian Muslim immigrants. A number of members of Parliament decried the social media reaction and praised the multiculturalism symbolized by Husic's appointment.

Yeshiva University Chancellor Retires; Apologizes For Handling of Sex Abuse Reports In 1980's

Yesterday Rabbi Norman Lamm, Chancellor and formerly long-time President of Yeshiva University announced in a letter that he is stepping down from his position as Chancellor and head of the rabbinical school at Yeshiva. As reported by The Forward, 85-year old Lamm's retirement comes amid growing pressure over mishandling of reported sexual abuse at Yeshiva University High School in the 1970' and 1980's, during Lamm's University presidency. As reported last December by The Forward, the accused abusers-- the high school principal and a Talmud teacher-- were not reported to authorities.  The principal eventually took a position elsewhere and the teacher retired. Both of the men, who now live in Israel, deny the allegations against them. In his letter yesterday announcing his retirement, Lamm wrote at some length about his mishandling of the abuse reports:

At the time that inappropriate actions by individuals at Yeshiva were brought to my attention, I acted in a way that I thought was correct, but which now seems ill conceived. I understand better today than I did then that sometimes, when you think you are doing good, your actions do not measure up. You think you are helping, but you are not. You submit to momentary compassion in according individuals the benefit of the doubt by not fully recognizing what is before you, and in the process you lose the Promised Land.... 

True character requires of me the courage to admit that, despite my best intentions then, I now recognize that I was wrong. I am not perfect; none of us is perfect. Each of us has failed, in one way or another, in greater or lesser measure, to live by the highest standards and ideals of our tradition — ethically, morally, halakhically. We must never be so committed to justifying our past that we thereby threaten to destroy our future. It is not an easy task. On the contrary, it is one of the greatest trials of all, for it means sacrificing our very egos, our reputations, even our identities. But we can and must do it. I must do it, and having done so, contribute to the creation of a future that is safer for innocents, and more ethically and halakhically correct.

Milwaukee Archdiocese Releases Files On 42 Abusive Priests

AP reports that the Catholic Archdiocese of Milwaukee (WI) yesterday released thousands of pages of records relating to 42 of the 45 diocesan priests with substantiated allegations against them of sexual abuse of a minor.  The release was part of an agreement reached in the Archdiocese's Chapter 11 bankruptcy reorganization proceedings where abuse victims are suing the Archdiocese.  A Questions & Answers sheet posted by the Archdiocese yesterday summarizes the 6,000 pages of documents. All the documents and related information are available from the Archdiocese's website. They are also available, catalogued a bit differently, on the website of the law firm representing the victims. One of the released documents that has attracted attention is the deposition of Timothy Cardinal Dolan, president of the U.S. Conference of Catholic Bishops. The New York Times reports that one of the other documents released yesterday is a 2007 letter from Dolan, then the archbishop, requesting Vatican permission to move $57 million into a cemetery trust fund to shield the assets from clergy abuse victims.

Missouri Governor Vetoes Bill Protecting Federal Holiday Observance

Apparently in response to what some perceive as an attack on the celebration of Christmas, in May the Missouri General Assembly passed HB 278 (full text) which provides:

No state or local governmental entity, public building, public park, public school, or public setting or place shall ban or otherwise restrict the practice, mention, celebration, or discussion of any federal holiday.

Yesterday Missouri governor Jay Nixon vetoed the bill (Veto Message)(News Release), along with SB 265 (Veto Message) that would have prohibited implementation of restrictions that stem from the sustainable development recommendations in United Nations "Agenda 21." Nixon said:

These issues may drive ratings on cable television, but they should not be the basis of public policy in Missouri. While the problems these bills ostensibly aim to fight are only imaginary, the headaches they could create for local governments would be very real and costly.

He said that HB 278 would hamper the enforcement of fireworks bans around the 4th of July and would allow state and local employees to demand time off for federal holidays, creating possible staff shortages for essential governmental functions. AP reports on the governor's action.

Factional Dispute In Ohio Mosque Can Only Be Decided In Quo Warranto Action By State

In Masjid Omar Ibn El Khattab Mosque v. Salim, (OH App., June 27, 2013), two competing groups each claimed to be the governing board of the Omar Mosque in Columbus, Ohio. The Mosque, at the instigation of the first board, filed suit in a state trial court seeking a temporary restraining order to require the second board to declare that it had no authority to control or direct the affairs of the Mosque. The members of the second board filed a counterclaim seeking a declaratory judgement that they are the legitimate board of the Mosque. The Court of Appeals upheld the determination that the trial court lacks jurisdiction in the case because the suit was asking it to determine an issue that can only be decided in a quo warranto action.  Under Ohio Revised Code, Chap. 2733, a quo warranto action can only be brought by the attorney general or a prosecuting attorney in the state Supreme Court or a Court of Appeals. The appeals court however held that the trial court's dismissal should have been without prejudice and that the trial court should have stayed the action so that it could be determined what to do with the Mosque's funds that were being held by the court during the litigation.

California State Court Judge Says Yoga Program In Schools Does Not Promote Religion

In California today a state trial court rejected a state constitutional challenge to the Encinitas Unified School District's teaching of Ashtanga yoga as part of the district's enrichment program. The district received a $533,000 from the Jois Foundation to fund the program. A suit by the National Center for Law and Policy contended that Ashtanga yoga is inherently religious because it is rooted in Hindu, Buddhist, Taoist, and Western Metaphysical religious beliefs.  The complaint alleged that teaching yoga in the public schools violates California constitutional bans on governmental religious preferences and use of state resources to promote or support religion. (See prior posting.) According to a 10News report on today's decision:

Judge John Meyer determined that a reasonable student would not associate yoga with religion because of the way the district set up its program. Meyer said he believed the district was not teaching any religious components during the classes and that he sees yoga as something similar to traditional PE sports such as kickball or volleyball. Meyers also found that the district's program follows state guidelines.

The National Center for Law and Policy issued a statement today saying that today's decision "is not the end of the road for this case or the last word regarding the fate of yoga in public education—this is only the beginning."

UPDATE: Here is the full text of the court's Minute Order in Sedlock v. Baird, (CA Super. Ct., July 1, 2013), thanks to Volokh Conspiracy.

Russia Sues Library of Congress For Return Of Loaned Books From Collection At Center of U.S. Litigation

As previously reported, in long-running litigation a U.S. federal district court has held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering it to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States. Now the Russian government has instituted its own lawsuit in a Russian court to force the U.S. Library of Congress to return seven books from one of the two collections that are on loan to it from Russia. Interfax reports today on a statement from Russia's ministry press service:

On July 1 the Ministry of Culture and the Russian State Library filed a motion at the Moscow Arbitration Court to bind the Library of the U.S. Congress to return seven books from the Schneerson library of the collection of the RSL center of Oriental literature received in 1994 for temporary use under the international library exchange system.

 Agudas Chasidei Chabad is also named as a party in the lawsuit.

Recent Articles and Books of Interest

From SSRN:

• Dwight G. Newman, On the Trinity Western University Controversy: An Argument for a Christian Law School in Canada, (Canadian Association of Law Teachers Annual Meeting in Victoria, British Columbia, June 4, 2013).
• John Copeland Nagle, What Hath Lynn White Wrought?, (2 Fare Forward 44 (2012)).
• Lida Sugin, The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, (78 Brook. L. Rev. 777 (2013)).
• Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Impact on Marriage, (California Law Review, Vol. 102, 2014, Forthcoming).
• Pinkeshwar Gangwar, Discrimination Against Dalits, (June 20, 2013).
• Erik James Girvan, & Grace M. Deason, Social Science in Law: A Psychological Case for Abandoning the 'Discriminatory Motive' under Title VII, (Cleveland State Law Review, Vol. 60, 1057 (2013)).

From SmartCILP:

• Giorgio Bernini, The Parties' Right to Choose Their Arbitrator and the Prohibition Against Discrimination: An Unstable Balance. A Comment on the Judgments in Jivraj v. Hashwan, [Abstract], 24 American Review of International Arbitration 27-62 (2013).
• Michael Blakeney, Protecting the Spiritual Beliefs of Indigenous Peoples--Australian Case Studies, 22 Pacific Rim Law & Policy Journal 391-427 (2013).
• The Legacy of the Arab Spring. Introduction by Ayodeji K. Perrin; symposium keynote lectures by Khaled Abou El Fadl and Lina Khatib; essays by Lama Abu Odeh, Ann Elizabeth Mayer, Amit K. Chhabra, Amos N. Guiora and Jordan J. Paust. 34 University of Pennsylvania Journal of International Law 305-446 (2013).

New Books:

• Marie A. Failinger, Elizabeth R. Schiltz & Susan J. Stabile (eds.), Feminism, Law, and Religion, (Ashgate Publishing, July 2013).
• James P. Byrd, Sacred Scripture, Sacred War: The Bible and the American Revolution, (Oxford University Press, June 2013).
• George Anastaplo, Reflections on Religion, the Divine, and the Constitution, (Lexington Books, August 2013).

Limits On Nude Sunbathing Are Not Violation of Naturist's Free Exercise Rights

In Wittbold v. Miami-Dade County, (SD FL, June 27, 2013), a Florida federal district court dismissed a lawsuit claiming that the county, by limiting nude sunbathing to one fenced area of the 177 acre Haulover Beach Park, violated plaintiff's 1st Amendment right to practice his religion of Naturism as well as his due process rights. According to the court, plaintiff's complaint "is a cacophony of irrelevant facts, biblical quotations and personal opinions that fail to state any cause of action."

Recent Prisoner Free Exercise Cases

[Note to readers: LEXIS Links in this and future postings are to Lexis Advance]

In Scott v. Shamsiddeen, 2013 U.S. Dist. LEXIS 86522 (ND NY, June 20, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 86474,  May 28, 2013) and dismissed an inmate's complaint that on two dates in 2011 he was deprived of Eid-ul-Adha religious meals. The problem resulted from authorities mistakenly believing plaintiff had been transferred.

In Jack-Bey v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 86645 (WD MI, June 20, 2013), while rejecting class action certification and damage claims, a Michigan federal district court permitted an inmate to proceed with his injunctive action claim that "Moorish Science Temple of America-1928 Grand Body" should be recognized by prison authorities (and its practices accommodated) as a separate religious group from "Moorish Science Temple of America, Inc. (1934 Portion)".

In Fabre v. Thompson, 2013 U.S. Dist. LEXIS 88116 (D OR, June 24, 2013), an Oregon federal district court dismissed a claim brought by plaintiff who was involuntarily committed for psychiatric treatment that his free exercise rights were violated when authorities invaded his soul and psyche, blocking the pathways to commune with God.

In Olmos v. Ryan, 2013 U.S. Dist. LEXIS 88118 (D AZ, June 24, 2013), an Arizona federal district court rejected a convicted child sex offender's claim that his probation conditions requiring that he obtain permission before going to places frequented by children under 18 violate his free exercise rights by preventing him from engaging in the close, frequent association with fellow believers.

In Lindsey v. Butler, 2013 U.S. Dist. LEXIS 88601 (SD NY, June 18, 2013), a New York federal district court permitted plaintiff, a Muslim, to file an amended complaint alleging that his free exercise and due process rights were infringed when he was forcibly shave while being detained at a police station following his arrest. Police shaved petitioner because others in the planned police line-up did not have beards.

In Calhoun-El v. Maynard, 2013 U.S. Dist. LEXIS 89945 (D MD, June 24, 2013), a Maryland federal district court dismissed an inmate's complaint that Muslim inmates do not receive ceremonial food packages equal to those given to inmates who keep a kosher diet.

In Turner v. Weikal, 2013 U.S. Dist. LEXIS 90463 (MD TN, June 27, 2013), a Tennessee federal magistrate judge recommended that a Muslim inmate be permitted to proceed with his 1st Amendment free exercise claims alleging that on 3 occasions he was not permitted to pray as required by his religious beliefs, he could not gather with other Muslims during Ramadan, he was not provided a correct religious diet, religious materials were removed from his room on two separate occasions, and he was retaliated against because of his Muslim faith. However his RLUIPA damage claims were dismissed.

Cert. Denied In Other DOMA Cases

Last Thursday, a day after issuing its same-sex marriage decisions, the U.S. Supreme Court cleaned up its docket by denying certiorari in several other cases challenging the constitutionality of DOMA.  The Court denied review in Windsor v. United States (Docket No. 12-63) and Bipartisan Legal Advisory Group v. Windsor, (Docket No. 12-785). It also denied review in Bipartisan Legal Advisory Group v. Gill (Docket No. 12-13), Department of Health & Human Services v. Massachusetts, (Docket No. 12-15), and Massachusetts v. Department of Health & Human Services, (Docket No. 12-97). (See prior related posting.) (June 27 Order List.)

Procedural Wrangling Tries To Delay Same-Sex Marriages In California

In its widely reported decision in Hollingsworth v. Perry last Wednesday, the U.S. Supreme Court held that petitioners lacked standing to challenge California's anti-gay marriage Proposition 8. SCOTUS remanded the case and ordered the 9th Circuit to dismiss the appeal from the district court. However it will be at least 25 days from the decision date until the Supreme Court formally certifies a copy of its judgment to the 9th Circuit.  Nevertheless, acting quickly, yesterday the 9th Circuit issued an Order (full text) dissolving the stay it had previously entered. That stay was the last impediment to same-sex marriage in California. Today, as same-sex marriages were being performed in the state, the proponents of Proposition 8 filed a motion (full text) with the U.S. Supreme Court asking it to vacate yesterday's 9th Circuit order on the ground that the 9th Circuit has no jurisdiction to act until the Supreme Court formally issues a certified copy of its judgment to it. Proponents argued that the premature termination of the stay deprives them of a meaningful opportunity to petition the Supreme Court for a rehearing. The Los Angeles Times and SCOTUS Blog report on this latest procedural wrangling.

UPDATE: AP reports that on June 30, Justice Anthony Kennedy denied the motion to vacate the 9th Circuit's order. Kennedy is the Justice assigned to receive motions regarding 9th Circuit cases.

Suit For Ministry Candidate's File Dismissed Under "Ecclesiastical Deference" Doctrine

In Mason v. Presbytery of San Francisco, (CA App., June 25, 2013), a California state appellate court dismissed under the "ecclesiastical deference" doctrine a lawsuit by a candidate for the Presbyterian ministry who sought access to her full candidacy file when, after ten years in the process, her candidacy was terminated. The court said that deciding whether there had been a contractual agreement to furnish the file to plaintiff at the end of her candidacy process, even if she did not receive a call to the ministry:

would require the courts to become embroiled in matters of church polity relating to the consideration of candidates for ministry and the handling of confidential or sensitive information received during the candidacy process. Thus, it is not possible for the courts to resolve the contract dispute alleged in the [complaint] without becoming entangled in matters of church polity.

The court also noted that in 2003:

the Permanent Judicial Commission of the General Assembly of the Presbyterian Church ,,, concluded, in a different matter, that respondent was not required to provide a candidate confidential documents relating to termination of the candidate.

Final Contraceptive Coverage Mandate Exemptions and Accommodations Issued For Religious Non-Profits

The Department of Health and Human Services announced today that it has adopted final rules on non-profit religious organizations and the contraception-coverage mandate under the Affordable Care Act. The rules (full text) deal both with the definition of those religious employers that are totally exempt from the requirement, and arrangements for coverage to be provided directly from health insurers in connection with other non-profit religious organizations that object to contraception coverage. According to the press release:

Today’s final rules finalize the proposed simpler definition of “religious employer” for purposes of the exemption from the contraceptive coverage requirement in response to concerns raised by some religious organizations.  These employers, primarily houses of worship, may exclude contraceptive coverage from their health plans for their employees and their dependents.

The final rules also lay out the accommodation for other non-profit religious organizations - such as non-profit religious hospitals and institutions of higher education - that object to contraceptive coverage.   Under the accommodation these organizations will not have to contract, arrange, pay for or refer contraceptive coverage to which they object on religious grounds, but such coverage is separately provided to women enrolled in their health plans at no cost.  The approach taken in the final rules is similar to, but simpler than, that taken in the proposed rules, and responds to comments made by many stakeholders.

With respect to an insured health plan, including a student health plan, the non-profit religious organization provides notice to its insurer that it objects to contraception coverage.  The insurer then notifies enrollees in the health plan that it is providing them separate no-cost payments for contraceptive services for as long as they remain enrolled in the health plan. 

Similarly, with respect to self-insured health plans, the non-profit religious organization provides notice to its third party administrator that objects to contraception coverage.  The third party administrator then notifies enrollees in the health plans that it is providing or arranging separate no-cost payments for contraceptive services for them for as long as they remain enrolled in the health plan.

According to a Fact Sheet on the new rules eliminate the requirements that a "religious employer" have the inculcation of religious values as its purpose; primarily employ persons who share its religious tenets; and primarily serve persons who share its religious tenets. For other non-profits, coverage directly from the insurer is available for any organization that:

on account of religious objections, opposes providing coverage for some or all of any contraceptive services otherwise required to be covered; is organized and operates as a nonprofit entity; holds itself out as a religious organization; and self-certifies that it meets these criteria in accordance with the provisions of the final regulations.

Pope Appoints Commission To Investigate Vatican Bank Amid Money Laundering Arrests

AKI reports today that the Vatican says it will cooperate fully with Italian authorities in their investigation of the Vatican Bank's (IOR) involvement in money laundering.  Today authorities arrested Monsignor Nunzio Scarano, a Vatican accountant on suspicion of fraud, corruption and slander. Scarano was suspended last month from the Vatican's Administration of the Patrimony of the Apostolic See which manages the Vatican's assets. Also arrested today were an Italian secret services agent and a financial broker who are suspected of involvement in an attempt to illegally move 20 million Euros to Italy. According to Deutsche Welle:

Earlier this week the AP ... reported that Scarano had withdrawn more than half a million euros in charitable donations without any flags being raised, walked out of Vatican City with the cash, and then used it to pay off a personal mortgage.

On Friday, dpa quoted Italian prosecutors as saying Bishop Scarano had paid Zito [the former intelligence officer] 400,000 euros ($520,000) to transport 20 million euros in cash from Switzerland to Italy onboard a private jet.

On Wednesday the Vatican announced that Pope Francis has set up a 5-member Pontifical Commission to investigate IOR's activities. It is charged with "gather[ing] accurate information on the Institute's legal position and various activities, in order to allow, if necessary, a better harmonization of the same with the universal mission of the Apostolic See."  (Chirograph establishing the Commission.) Among the Commission members is Harvard Law Professor Mary Ann Glendon, a former U.S. Ambassador to the Vatican.

UPDATE: The Director and Deputy Director of the Vatican Bank resigned on July 1. (National Catholic Reporter.)

Russian Upper House Sends Ban on Insulting Religion to Putin For Signature; USCIRF Criticizes Bill

As previously reported, earlier this month the Russian Duma (lower house of Parliament) passed amendments to the Russian Criminal Code to punish insulting the religious beliefs and feelings of citizens. Yesterday the law was approved by the Federation Council (the upper house of Parliament). (Legislative history in Russian).  The bill must still be signed by President Vladimir Putin in order for it to become law. Today the U.S. Commission on International Religious Freedom issued a press release strongly critical of the new law, saying in part:

The bill now awaits only a presidential signature before becoming law, most likely on July 1. The bill would punish alleged offenses against religious sentiments by up to three years in prison. 

 “With space for free expression shrinking rapidly in Russia, enactment of this bill would further erode human rights protections in Russia,” said U.S. Commission on International Religious Freedom (USCIRF) Chair Dr. Katrina Lantos Swett.  “Speech limitations violate Russia’s international commitments, and this law will lead to abuse and arbitrary rulings against permissible speech that some deem ‘offensive..... [I]f enacted, this new law gives credence to the view Russian human rights activists expressed to me that Russia is in full retreat from democracy and the rule of law.” 

UPDATE: Radio Free Europe reported on June 30 the President Putin signed the bill into law, along with a second controversial bill that prohibits disseminating to minors any propaganda involving "nontraditional sexual relations."

Former Guantanamo Detainee's Suit Alleging Free Exercise Violations Dismissed For Lack of Jurisdiction

In Ameur v. Gates, (ED VA, June 29, 2013), plaintiff, an Algerian citizen arrested in Pakistan and subsequently transferred to Guantanamo Bay for five years, sued various former government officials for damages alleging that his treatment violated customary international law, the Geneva Convention, the 5th Amendment, the 1st Amendment's free speech and free exercise protections, and the Religious Freedom Restoration Act. The court dismissed his claims finding that the Military Commission Act divests the court of jurisdiction. Lawfare blog has more on the decision.

Former School Employees State Claims For Anti-Mormon Bias

In Hunt v. Central Consolidated School District, (D NM, June 12, 2013), a New Mexico federal district court in a long opinion held that a former Transportation Director and former Custodial Supervisor could proceed with claims that their reassignments as part of a school district administrative restructuring were motivated by anti-Mormon bias. The court held that plaintiffs had stated plausible claims of discrimination, conspiracy and breach of contract. The suit alleged that the school board president and his campaign manager were involved in anti-Mormon comments that were posted on a local newspaper's blog.