Abuse Victims Say Judge Had Conflict of Interest In Milwaukee Archdiocese Trust Fund Ruling

As previously reported, last month Wisconsin federal district court judge Rudolph T. Randa held that a $55 million cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the bankruptcy reorganization of the Milwaukee Catholic Archdiocese.  On Monday, the Unsecured Creditors' Committee (representing abuse victims) filed a Motion to Vacate the Judgment and a Memorandum in Support of the Motion, as well as a Motion to require Judge Randa to recuse himself and a Memorandum in Support of the Motion. Petitioners argue:

at least nine of Judge Randa’s relatives (including his mother, his father and his wife’s parents) are buried in cemeteries owned and operated by the Debtor, the very cemeteries that are to be maintained with the funds moved from the Debtor’s accounts to the Cemetery Trust before filing for bankruptcy.... [In addition] he is a party to a contract wherein the Cemetery Trust is the exclusive provider of care and maintenance for [his parents'] burial crypts, with an interest in how the funds are used.

Yesterday's Milwaukee Journal-Sentinel reporting on the motions, says that Judge Randa's ruling removed the last major asset available for a settlement with abuse victims.

L.A. Will Pay $950,000 In Attorney's Fees In RLUIPA Lawuit

The Los Angeles Times reports that Los Angeles City Council yesterday voted unanimously to pay $950,000 in attorneys' fees and costs to finally conclude a long-running RLUIPA lawsuit that was filed against it in 2010 by an Orthodox Jewish congregation seeking to use a residential property as a synagogue.  In May in Congregation Etz Chaim v. City of Los Angeles, (CD CA, May 15, 2013), a California federal district court held that the city's denial of a conditional use permit and a variance to the congregation violated RLUIPA. (See prior related posting).

New Contraceptive Coverage Challenge-- Individual Employee Seeks Religious Exemption

In the wake of dozens of lawsuits by for-profit businesses challenging the Affordable Care Act contraceptive coverage mandate on religious liberty grounds, yesterday the other shoe dropped as an individual-- who happens to also be a state legislator-- sued to obtain a court order allowing him to opt out of contraceptive coverage provided in his employer's plan. The complaint (full text) in Wieland v. U.S. Department of Health and Human Services, (ED MO, filed 8/14/2013), alleges that previously legislator Paul Wieland and his wife were able to choose a state health plan that did not cover contraceptives, abortifacients or sterilization, but that because of the mandate his insurer notified him that effective August 1 he would be placed in a plan that covers contraception and sterilization.  The complaint contends that plaintiffs, because of their Christian religious beliefs, do not want to furnish this coverage for their three daughters, age 12, 18 and 19. It contends that their premiums went up to pay for contraceptive and sterilization coverage, and that their premiums also partially fund medical services to other employees covered under the same plan.

In the complaint, plaintiffs cite Mo. Rev. Stat. § 191.724, enacted last year, that provides: "No employee... shall be compelled to obtain coverage for, or be discriminated against or penalized for declining or refusing coverage for, abortion, contraception, or sterilization in a health plan if such items or procedures are contrary to the religious beliefs or moral convictions of such employee or person."  A related provision of Missouri law was declared invalid by a federal court last year. (See prior posting.) The complaint filed yesterday contends that the mandate violates plaintiffs' rights under RFRA, the 1st and 5th Amendments and the Administrative Procedure Act. Thomas More Society announced the filing of the lawsuit. The St. Louis Post Dispatch reports on the suit.

California Supreme Court Rejects Last Ditch Effort To Enforce Proposition 8

As reported by the Los Angeles Times, the California Supreme Court yesterday denied the petition for a writ of mandate that was filed last month seeking to require county clerks in the state to enforce Proposition 8's ban on same-sex marriages, despite the U.S. Supreme Court's decision in June in Hollingsworth v. Perry.  The state supreme court's Aug. 14 order (full text) in Hollingsworth v. O'Connell did not give reasons for the denial of the writ of mandate. Petitioners had argued (see prior posting) that the injunction in Hollingsworth v. Perry (see prior posting) should be read narrowly to cover only the specific plaintiffs or specific counties involved in the case.

Split 3rd Circuit Denies En Banc Rehearing In Contraceptive Coverage Case

By a vote of 7-5 yesterday the U.S. 3rd Circuit Court of Appeals denied an en banc rehearing in Conestoga Wood Specialties Corp. v. Secretary of U.S. Department of Health and Human Services. In the case, a 3-judge panel in a 2-1 decision last month denied a preliminary injunction sought by a family-owned business to stop enforcement of the Affordable Care Act contraceptive coverage mandate. (See prior posting.) Alliance Defending Freedom announced that it would now petition the U.S. Supreme Court to review the decision.

Cameroon Closing A Number of Unregistered Christian Churches

Voice of America and the Cameroon Tribune report that in the west African nation of Cameroon the government has begun closing down a number of illegal Christian churches which it says are engaging in activities that are a threat to public order. The churches say that they have been targeted because their pastors have criticized the government of President Paul Biya. However, the government contends that the churches have engaged in a variety of improper activities from disturbing neighborhoods by use of loud speakers and instruments, to dividing families. Cameroon law requires government approval and registration of religious groups that wish to operate in the country. (Background.) The government says that the churches being closed have not registered and do not intend to do so.

Buckingham Palace Lists Young Albert and Leopold In Line of Succession Even Though They Are Catholic

Great Britain's 1701 Act of Settlement prohibits Catholics from succeeding to the throne. However, as reported Monday by The Express, on the Official Website of the British Monarchy five-year old Albert and three-year old Leopold are listed as 39th and 40th in line for the throne even though they are Catholics.  The boys' father, Lord Nicholas Windsor (great-grandson of George V), converted to Catholicism in 2001. His Croatian wife Paola is also a Catholic, and the two boys were baptized as Catholics. Buckingham Palace has not commented on the boys' inclusion in the Line of Succession, but some have suggested that they would not be disqualified until they are old enough to make up their own minds about religion, perhaps at the time of their confirmation.

Good News Clubs Sues School District Over Discriminatory Fees

Yesterday Child Evangelism Fellowship filed a federal lawsuit against the Cleveland, Ohio school district alleging that an elementary school applied the school district's fee policy in a manner that discriminated against CEF's Christian-based Good News Clubs. The complaint (full text) in Child Evangelism Fellowship of Ohio, Inc. v. Cleveland Metropolitan School District, (ND OH, filed 8/13/2013) alleges that the school district violated CEF's 1st and 14th Amendment rights by imposing a facilities use fee on it for use of school space for after-school meetings, but waiving the fee for the Boy Scouts. Liberty Counsel announced the filing of the lawsuit.

2014 National Religious Freedom Moot Court Competition Announced

George Washington University Law School has announced the details of its 2014 Religious Freedom Moot Court Competition for law school students. This year's Problem involves a challenge to a federal program that provides financial assistance for rebuilding after natural disasters.  At issue is the hypothetical program's coverage of houses of worship along with other community facilities. The Competition will be held Feb. 7-8, 2014 in Washington, D.C.

Illinois Diocese Settles Sex Abuse Lawsuit

According to today's Bergen County (NJ) Record, the Catholic Diocese of Peoria, Illinois has agreed to pay $1.35 million in a settlement of a lawsuit alleging that John J. Meyers-- its former bishop and now Archbishop of Newark-- failed to adequately investigate a 1995 report of sexual abuse by a priest. Plaintiff in the lawsuit and at least three other boys were abused by the priest, Monsignor Thomas W. Maloney, after the 1995 complaint against him.

Another Contraceptive Coverage Mandate Challenge; DOJ Wants Gilardi To Be Test Case In DC Circuit

Last week, yet another lawsuit was filed by a for-profit corporation and its owners challenging the Affordable Care Act's contraceptive coverage mandate.  The complaint (full text) in Trijicon, Inc. v. Sebelius, (D DC, filed Aug. 7, 2013), alleges:

The Mandate illegally and unconstitutionally requires Trijicon to violate its and its owners’ religious beliefs by forcing the company to provide abortion-inducing items, such as “Plan B” (the so-called “morning after pill”), Ella (the so-called “week after pill”), and intauterine devices (“IUDs”).

Trijicon is a leading manufacturer of sights and rifle scopes sold to hunters and to the military.  According to an Aug. 9 press release from Alliance Defending Freedom, the Justice Department has now notified the court that (as explained in plaintiffs'  motion for preliminary injunction) it will not oppose the granting of a preliminary injunction, so long as Plaintiffs agree to stay proceedings pending the D.C. Circuit Court of Appeals final disposition of a similar challenge to the ACA in Gilardi v. Sebellius. The government's action is consistent with steps it has taken in other cases to use Gilardi as the vehicle for the DC Circuit to pass on business challenges to the mandate.

An interesting side note-- in 2010 Trijicon became the center of news coverage when it agreed to stop including coded references to Bible verses as part of the serial number on rifle sights supplied to the military. (See prior posting.)

Court Temporarily Permits Continuation of Challenged Lease To Jewish School

An Albany County, New York trial court judge last week stayed until at least Oct. 18 a decision by the State Education Commissioner that would have invalidated a lease of a school building by the East Ramapo Central School District to an ultra-Orthodox Jewish girls' school operated by Congregation Avir Yakov of New Square, NY.  According to Sunday's Lower Hudson Journal News, originally the school building was sold to Avir Yakov for $3.1 million, but that sale was cancelled by the State Education Commissioner after the Attorney General's office charged that Avir Yakov had paid off an appraiser to submit an artificially low appraisal of the building. Since then, East Ramapo has rented the building to Avir Yakov for $19.000 a month plus $2000 per month for the right of first refusal to buy the building. The Education Commissioner, responding to the complaint of the Save Our Schools Coalition, decided that this was an inadequate rental amount.  East Ramapo argued for the stay pending appeal of the Commissioner's decision because  the school district would have had to cut school services to reflect its loss of the $252,000 of income it anticipated this year from the lease.  A cancellation would also have left the Jewish school without a building just as the school year begins.

Israel's National Tennis Team Gets Monetary Penalty For Rescheduling of Yom Kippur Match

JTA reports today that Israel's national tennis team has been ordered by the International Tennis Federation to pay the Belgian Tennis Association over $13,000 for the inconvenience of rescheduling a Davis Cup match that was originally to take place on Yom Kippur.  Initially the Belgian team refused to reschedule the Sept. 14 match in Antwerp. The International Tennis Federation stepped in and changed the date to Sept. 15, but with the monetary penalty. The Israel Tennis Association is a non-profit organization.

Tennessee Magistrate Objects To Child Being Named "Messiah"

AP and WBIR report on the decision of a Newport, Tennessee Child Support Magistrate who last week ordered that a 7-month old child's name be changed to Martin instead of Messiah, even though Messiah was among the fastest rising baby names last year. The parents were in court because they could not agree on a last name for their child, but Magistrate Lu Ann Ballew ordered the child's first name changed also. She ruled that it is in the best interest of the child, particularly if he grows up in largely Christian Cocke County (TN).  In issuing the order that the boy be named Martin DeShawn McCullough (incorporating the last names of both parents), Magistrate Ballew said: "The word Messiah is a title and it's a title that has only been earned by one person and that one person is Jesus Christ." The child's mother is appealing the magistrate's decision to the Tennessee Chancery Court. A hearing is scheduled for Sept. 17.

Suit Charges School Officials With Ignoring Anti-Jewish Harassment of 13-Year Old

The Quincy (MA) Patriot Ledger reports on a lawsuit filed July 30 in Massachusetts federal district court by the parents of a 13-year old charging Carver, Massachusetts school officials with ignoring and failing to prevent anti-Semitic harassment and bullying of their son.  The suit alleges that since the boy began attending Carver Middle High School in 2011 he has been subjected to derogatory slurs, Nazi salutes and physical abuse from a group of other boys, two of whom were arraigned last month on assault and battery and civil rights charges.

Recent Articles and Books of Interest

From SSRN:

• Kara Loewentheil, When Free Exercise Is A Burden: Protecting 'Third Parties' in Religious Accommodation Law, (August 6, 2013).
• Susan C. Hascall, Islamic Commercial Law and Social Justice: Shari’ah Compliant Companies, Workers’ Rights, and the Living Wage, (St. John's Law Review, Vol. 88, No. 1, 2014).
• Engy Abdelkader, To Judge or Not to Judge: A Comparative Analysis of Islamic Jurisprudential Approaches to Female Judges in the Muslim World (Indonesia, Egypt and Iran), (Fordham International Law Journal, Forthcoming).
• Iain T. Benson, Religious Interfaith Work in Canada and South Africa with Particular Focus on the Drafting of a South African Charter of Religious Rights and Freedoms, (HTS Teologiese Studies/Theological Studies 69(1), Art. #1319, DOI: org/10.4102/hts.v69i1.1319 (2013)).
• Muhammad Munir, Freedom of Expression, Information, Thought and Religion in Islam and Convention on the Rights of the Child (CRC), (July 13, 2013).

From SmartCILP:

• William E. Nelson, The Persistence of Puritan Law: Massachusetts, 1660-1760, [Abstract], 49 Willamette Law Review 307-409 (2013).

New Books:

• Steven D. Smith, The Rise and Decline of American Religious Freedom, (Harvard Univ. Press, Feb. 2014).
• Kimberly D. Richman, License to Wed: What Legal Marriage Means to Same-Sex Couples, (NYU Press, Dec. 2013).

British Equalities Office Implements Long Process to Implement Ban On Caste Discrimination

For a number of years, Britain has debated whether to include caste discrimination among individuals from the Indian subcontinent as part of its anti-discrimination laws. The Equality Act 2010, Sec. 9, gave the government authority to issue an Order to include caste discrimination. Then the Enterprise and Regulatory Reform Act 2013, Sec. 97, required the government to issue such an Order, and not repeal it until at least 2015.  Last month the Government Equalities Office issued a timetable (full text) for public consultation and drafting of the caste legislation, projecting that a final draft Order would be introduced into Parliament in Summer 2015. The Dalit Solidarity Network, in a July 29 press release, charged that the timetable is really an attempt by the government to delay or kill the ban.  As reported yesterday by the Times of India, the Alliance of Hindu Organisations opposes the ban:

For the AHO, the two-year consultation has come as a fulfillment of its demand. It wants the consultation to address "the issues of definition of caste, the need to avoid disclosure of caste and a sunset clause to allow the removal of the legislation". AHO has also expressed concerns about the "intolerant, offensive and inaccurate comments" that had been made, "in particular in the House of Lords", against the Hindu community during the debates in April on the anti-caste discrimination law.

Recent Prisoner Free Exercise Cases

In Williams v. Allen, 2013 U.S. Dist. LEXIS 109388 (MD GA, Aug. 5, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 110468, July 3, 2013) and permitted a Muslim inmate to proceed against the prison warden with his complaint that his free exercise rights were infringed when he was denied a nutritionally adequate vegan diet.

In Salim v. Carlson, 2013 U.S. Dist. LEXIS 110459 (ED WI, Aug. 6, 2013), a Wisconsin federal district court, finding factual disputes, allowed a Muslim inmate to move ahead with his complaint that while in administrative segregation he was denied a Qur'an, and was denied a Salat schedule and clock, the opportunity to fast during Ramadan and to participate in feast day activities.

In Leach v. New York City, 2013 U.S. Dist. LEXIS 110611 (SD NY, Aug. 2, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 110658, March 6, 2013) and dismissed a suit by an inmate who claimed to be an "unorthodox [J]ewish religious observer". Plaintiff complained that the City failed to provide him with Kosher Matzos on a regular basis and did not allow him to speak with a Rabbi on one occasion.

In Diggs v. Volpe, 2013 U.S. Dist. LEXIS 111365 (SD NY, Aug. 7, 2013), a New York federal district court dismissed a Muslim inmate's complaint that for a 4-month period while in disciplinary confinement he was unable to attend congregate religious services.

In Vazquez v. Officer Waln, 2013 U.S. Dist. LEXIS 111437 (MD NC, Aug. 7, 2013), a North Carolina federal magistrate judge dismissed RLUIPA, free exercise and equal protection claims by a Mexican-born Native American inmate who objected when Religious Box was confiscated because he failed to store it in his locker.

In Perry v. Knowles, 2013 U.S. Dist. LEXIS 111617 (ED TN, Aug. 8, 2013), a Tennessee federal district court dismissed an inmate's complaint that the jail administrator confiscated his religious material and failed to tell him the time so he would know when to pray.

In Mead v. Palmer, 2013 U.S. Dist. LEXIS 112291 (ND IA, Aug. 9, 2013), an Iowa federal district court permitted a civilly committed sex offender to proceed with his complaint that for two years authorities have refused to furnish him with a minister of his faith to minister to him in a Sunday service.

U.S. Flies Rescued Family Back After Their Failed Attempt To Sail To Kiribati For Religious Freedom

AP reports that U.S. Embassy officials in Chile have arranged for the flight back to the United States of 5 members of a northern Arizona family who were rescued after 2 months at sea in a failed attempt to sail their small boat from California to the island nation of Kiribati. According to Hannah Gastonguay, her family left the U.S. because they were fed up with government interference with religious independence. She said that as Christians they don't believe in "abortion, homosexuality, in the state-controlled church," and objected to being "forced to pay these taxes that pay for abortions we don't agree with." The Gastonguays are not members of any church; their beliefs come through reading the Bible and prayer.

Glitch In Affordable Care Act Threatens Viability Of Church Health Plans; Fix Introduced But Unlikely To Pass

Religion News Service reports today on a technical glitch in the Affordable Care Act that will make it difficult for churches to continue to offer church health plans.  Under the Act, tax credits are available to low-income and middle class families to assist them in purchasing insurance through the government-run exchanges.  However the same credits are not available for church employees to use to purchase insurance under church plans. This means that many clergy and other church employees who qualify for tax credits are likely to pull out of church plans and purchase insurance on exchanges. That may well jeopardize the viability of church plans.  S. 1164, The Church Health Plan Act of 2013, was introduced in June by Senators Mark Pryor (Ark.) and Chris Coons (Del.) to correct this inconsistency so tax credits can be used for church plans.  However Republican opposition to enacting improvements to Obamacare make it unlikely that the bill will be enacted.

Same-Sex Marriage Developments Continue

Developments stemming from the U.S. Supreme Court's recent same-sex marriage decisions continue to be reported:

According to yesterday's Deseret News, Utah businessman Jonathan Johnson, executive vice chairman of  Overstock.com, is undertaking a national campaign, beginning in Utah, urging states to amend their constitutions to protect religious organizations from being required to  "solemnize, officiate in, or recognize any particular marriage or religious rite of marriage in violation of its beliefs."

Under American immigration law, an individual may receive a derivative visa if his or her spouse or first-degree relative is eligible for U.S. residency.  Haaretz reports that the American embassy in Israel has issued its first derivative visas to Israeli same-sex spouses who were married legally outside of Israel.

Court Invalidates Temporary Land Use Limits On Pregnancy Center As Overbroad and Vague

In The Life Center, Inc. v. City of Elgin, Illinois, (ND IL, Aug. 8, 2013), an Illinois federal district court invalidated Elgin's temporary land use provision as unconstitutionally overbroad and vague. The ordinance was challenged by The Life Center, a religiously-based organization that furnishes pregnant women with religious literature and certain prenatal services. Its mobile facility operates from commercial parking lots with the consent of the owners.  The ordinance limits the number of days the facility can operate. The court held:

The definitions under the Code for the terms "land use" and "structure" are so broad, they would encompass virtually all types of activity, including a substantial amount of activity protected under the First Amendment.

Plaintiffs claim that the 2012 amendments to the city ordinance that put in place the challenged provisions were targeting The Life Center. Christian Newswire carries TLC's press release on the decision.

U.S. Amicus Brief In Supreme Court Supports Town's Invocation Policy

Some two dozen amicus briefs in support of the Town of Greece, New York's prayer policy have been filed with the U.S. Supreme Court in Galloway v. Town of Greece. The case is scheduled to be argued this term.  (Amicus briefs in support of plaintiffs challenging the policy are not yet due.) Among the most interesting of the briefs supporting the town is the one filed by the Solicitor General on behalf of the United States. (Full text.) In the brief filed Aug. 2, the SG argues that legislative prayer which does not proselytize, disparage any religion or advance a particular faith does not violate the Establishment Clause "merely because most prayer-givers are Christian and many or most of their prayers contain sectarian references." The brief adds: "Neither federal courts nor legislative bodies are well suited to police the content of such prayers." The Second Circuit held that the town's invocation practices convey the impression that it is endorsing Christianity. (See prior posting.)

Obama Sends Muslims Eid-al-Fitr Greetings

The White House yesterday released a statement (full text) sending warmest greetings from the President and First Lady to Muslims in the U.S. and around the world celebrating Eid-al-Fitr. The President also used the statement to highlight the humanitarian food and other aid being sent to the people of Syria.

Plaintiff Gives Up On Trying to Hold Vatican Liable In Priest Abuse Case

On Aug. 5, the U.S. 9th Circuit Court of Appeals dismissed at the request of the parties the appeal in Doe v. Holy See which sought to hold the Vatican vicariously liable in a priest sexual abuse case. AP reports that plaintiff's lawyer Jeff Anderson said that his client has grown tired after ten years of litigation. Vatican Radio has published an interview about the case with the Vatican's lawyer Jeffrey Lena. (See prior related posting.)

Suit Challenges Revised Contraceptive Coverage Mandate Accommodation for Non-Profits

In June, the Department of Health and Human Services issued final rules providing a compromise for religiously sponsored non-profits such as hospitals and colleges that object to the Affordable Care Act's contraceptive coverage mandate. (See prior posting.) The Becket Fund announced yesterday that a lawsuit challenging these revised rules has been filed by Colorado Christian University whose attempt last year to challenge the mandate was dismissed on ripeness grounds. The complaint (full text) in Colorado Christian University v. Sebelius,  (D CO, filed 8/7/2013) contends that the final compromise is "meaningless,"  saying in part:

147. In sum, for both insured and self-insured organizations, the accommodation is nothing more than a shell game that attempts to disguise the religious organization’s role as the central cog in the government’s scheme for expanding access to contraceptive and abortifacient services.

148. Despite the accommodation’s convoluted machinations, a religious organization’s decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to free contraceptive and abortifacient services.

State Department Launches New Office of Faith Based Community Initiatives

Last October, the U.S. State Department's Religion and Foreign Policy Working Group issued a White Paper recommending creation of an institutionalized mechanism for the State Department to use in communicating and collaborating with religious communities around the world. At a press conference today, Secretary of State John Kerry announced the launching of the State Department's Office of Faith Based Community Initiatives whose mission is to partner with faith communities to solve global challenges. The Office will be headed by Dr. Shaun Casey.  Also speaking at the press conference, Melissa Rogers, Director of the White House Office of Faith-Based and Neighborhood Partnerships, issued some 1st Amendment cautions, saying:

[A] guiding principle for all of this work will be that our actions must be consistent with the United States Constitution. Employees of our government can and should engage faith-based leaders and communities on US policy priorities just as they do other civil society leaders and communities. At the same time, our precious religious freedom guarantees of the First Amendment mean that we must observe some special rules when we engage religious actors and matters, such as ensuring governmental neutrality toward faith. All diplomatic and consular posts will receive guidance and continuing assistance on these important issues.

The exact relationship of the new office to existing State Department officials concerned with religious issues is not clear, though both Secretary Kerry and Dr. Casey assured cooperation with them.  Currently serving in roles related to religion are  Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook, Special Envoy to the Organization of Islamic Cooperation Rashad Hussain, Special Envoy to Monitor and Combat Anti-Semitism Ira Forman, and Special Representative to Muslim Communities Farah Pandith.

Meanwhile, The Immanent Frame has published an exchange between 17 experts on the prospects for the new Office and its implications for religious diversity and non-religious civil society organizations.

Federal Faith-Based Partnership Reforms Grind Slowly Ahead With New OMB Memo

As previously reported, in April 2012 the White House issued the Recommendations of the Interagency Working Group on Faith-Based and Other Neighborhood Partnerships which provides federal agencies with guidance on carrying out Executive Order 13559 (Nov. 17, 2010)-- the executive order that adopted a number of recommendations of the President's faith-based task force. Now, as announced last week by the White House Office of Faith-based and Neighborhood Partnerships, the Office of Management and Budget has finally issued a Memorandum (full text) instructing federal agencies to take steps, consistent with that Report, to carry out the 2010 Executive Order.  However, further delay is likely since the Memorandum states that the Working Group that created the 2012 Report will now be reconvened to develop a plan for agency implementation of the Executive Order. After that plan is issued, agencies will have 120 days to send OMB their agency-specific plan for amending their rules and guidance documents. Religion News Service yesterday reported on  these developments. [Thanks to Michael Lieberman for the lead.]

Kenyan Lawyer Wants International Court To Vindicate Jesus

According to a report last week in the Jerusalem Post and an earlier report by Standard Digital News, a Kenyan lawyer is attempting to get the International Court of Justice (ICJ) to give legal vindication to Jesus by declaring his trial before the Roman courts centuries ago a legal nullity. The suit was originally filed in the High Court of Kenya in 2007. (Full text of complaint.) When the Kenyan courts rejected the suit, lawyer Dola Indidis petitioned the ICJ.  The suit names , Tiberius (emperor of Rome, 42 BC-37 AD), Pontius Pilate (Governor of Judea), Annas, Jewish Chief Priest, Elders and Teachers and King Herod as defendants. It also names the Republic of Italy and the State of Israel on the theory that they are the successors to the laws of the Roman Empire that were in force at the time of Jesus' crucifixion. An ICJ spokesman says it only has jurisdiction in suits between states, and not here where a private party is suing. However Indidis says that the ICJ has constituted a panel to hear the case.

Former School Employee Who Suffered Religious Pressure Can Proceed On Discrimination and Retaliation Claims

In Scott v. Montgomery County School Board, (WD VA, Aug 5, 2013), a Virginia federal district court allowed a former school library media aide to move forward with her religious discrimination and retaliation claims growing out of alleged Christian religious pressure from her immediate supervisor. The court however dismissed plaintiff's hostile work environment claim, as well as her claim for punitive damages.

Wire Service Exempt From State Anti-Discrimination Ban In Refusal To Publish Article On Religious Beliefs

In Medhi v. Commission on Human Rights and Opportunities, (CT App., official release date: Aug. 13, 2013), the Appellate Court of Connecticut dismissed a suit in which plaintiff claimed he had been discriminated against on the basis of religion when the Associated Press refused to publish articles he had written regarding his religious beliefs.  The court affirmed the Human Rights Commission's holding that AP was exempt from the ban on religious discrimination in public accommodations (CT Stat. § 46a-64 (a)) where the complaint alleged a matter reserved for journalistic discretion. Ordering AP to print the material would have violated the 1st Amendment.

Air Force Agrees That Officers May Take Secular Version of Commissioning Oath

The American Humanist Association reports today that the U.S. Air Force has responded positively to its letter complaining on behalf of an Officer Trainee about Air Force Form 133 (Oath of Office).  The oath of office on the form (while allowing the individual signing it to "affirm" rather than "swear") ends with the phrase "so help me God." AHA's letter, complaining on constitutional grounds, was sent on behalf of an officer trainee who was required by his flight commander to sign the oath, even though the theistic reference violates his beliefs. The Officer Trainee was also told he would be required to take an identical verbal oath.  Air Force officials, admitting their mistake and apologizing, now assure AHA that the Officer Trainee will be permitted to take a secular version of the verbal oath that is administered, and will be allowed to revise the written version he signed. Other members of the graduating class are also being advised of the secular option.

Russian Kopimists Plan To Challenge Internet Piracy Law As Insult To Religious Feelings

In Russia, a new law that takes effect this week aimed at stopping Internet piracy has given a stronger hand to copyright holders. (Hollywood Reporter.)  Opponents of the law have devised an ingenious new strategy.  As reported by RT and by Network World, activists in 5 Russian cities will apply to register the Missionary Church of Kopimism as a religion. Kopimism is a movement, centered in Sweden, that believes sharing information is a sacred value. Once the Kopimists complete the paperwork, they then plan to file suit to invalidate the new anti-piracy law on the ground that it violates another recent law that prohibits insulting the religious beliefs and feelings of citizens. (See prior posting.)

County Commissioners Pray In Another Room To Technically Comply With Court Order

As previously reported, last month a federal district court issued a preliminary injunction barring the Rowan County, North Carolina Board of Commissioners from opening Board meetings with sectarian prayers. According to the Salisbury Post, at yesterday's Board meeting the commissioners showed technical compliance. After opening the meeting and reading a statement saying they believed the injunction was unconstitutional, the commissioners briefly recessed the meeting so that they could go into another room and pray. During the three minutes they were gone, someone attending the meeting stood up and offered their own prayer, ending "in Jesus' name." The commissioners returned before that prayer was completed.

Indicted Minister of Cannabis Church Wins Partial RFRA Victory

Hawai'i Daily News reports that last Wednesday a Hawaii federal district court gave a partial victory to Rev. Roger Christie who is charged with distributing marijuana to his parishioners as part of his religious ministry.  Judge Leslie E. Kobayashi ruled that as a matter of law, two of the elements of a Religious Freedom Restoration Act defense have been shown.  Christie's actions stem from a sincere belief in a legitimate religion, and the government has substantially burdened his religious exercise. The government can still prevail if at trial it shows that it had a compelling interest in barring the religious use of cannabis here, and that it used the least restrictive means to further that interest.

Australian Election Date Moved, Avoiding Conflict With Yom Kippur

Australia's Prime Minister Kevin Rudd yesterday called elections for Sept. 7, instead of the Sept. 14 date that had been set by former Prime Minister Julia Gillard.  The Sept. 14 date conflicted with the Jewish holy day of Yom Kippur. As reported by the Times of Israel:

Australia, home to more than 100,000 Jews, has compulsory voting, meaning all citizens must cast their vote in national elections or face a penalty, usually a fine or community service. Since elections are always held on Saturdays, Orthodox Jews are already used to casting their votes via the mail, but there was concern that [if elections were scheduled for Yom Kippur] less observant members of the community may fail to follow suit and miss voting by going to synagogue.

Recent Articles of Interest

From SSRN:

• Pasquale Annicchino, Recent Developments Concerning the Promotion of Freedom of Religion or Belief in Italian Foreign Policy, (The Review of Faith & International Affairs (Forthcoming)).
• Asad Zaman, Islam Versus Economics, (Oxford University Handbook on Islam and the Economy, Kabir Hassan and Mervyn Lewis, eds., 2013 Forthcoming).
• Petur O. Jonsson, Some Thoughts on Hamill, the Two Kingdoms, and the Ethics and Logic of Higher Tax Rates and Redistribution, (Journal of Accounting, Ethics and Public Policy, Vol. 14, No. 3, 2013).
• Douglas Laycock, Religious Liberty and the Culture Wars, (U. Ill. L. Rev., 2014, Forthcoming).
• Perry Dane, Allan R. Stein & Robert F. Williams, Saving Rutgers Camden, (Rutgers Law Journal, Forthcoming).
• Howard Kislowicz, Freedom of Religion and Canada's Commitments to Multiculturalism, (31 National Journal of Constitutional Law 1, 2012).
• Reva B. Siegel, Dignity and the Duty to Protect Unborn Life, (in Understanding Human Dignity, Christopher McCrudden ed., Forthcoming 2014).

From SmartCILP and elsewhere:

• Jack M. Beermann, Jewish Identity and Judging: Seymour Simon of Illinois, 44 Loyola University Chicago Law Journal 939-964 (2013). 
• Edward J. Larson, Teaching Creation, Evolution, and the New Atheism in 21st Century America: A Window On an Evolving Establishment Clause, 82 Mississippi Law Journal 997-1048 (2013).
• Peter P. Meringolo, Catholic Moral Teaching and Natural Law: Changing the Way We Think About and Teach Professional Legal Ethics, 44 Loyola University Chicago Law Journal 1067-1091 (2013).
• Niaz A. Shah, The Use of Force Under Islamic Law, [Abstract], 24 European Journal of International Law 343-365 (2013).
• Rex Adhar, Is Secularism Neutral?, [Abstract], Ratio Juris, Vol. 26, Issue 3, pp. 404- 29, Sept. 2013.

[Updated]

British Appeals Tribunal Says Firing of Chef For Using Non-Kosher Jam Was Pretext For Disability Discrimination

In Carmelli Bakeries Ltd. v. Benali, (EAT, July 31, 2013), Britain's Employment Appeal Tribunal upheld the finding of an Employment Tribunal that a kosher bakery's discharge of a pastry chef for intentionally using non-kosher jam in a cake was unfair.  It concluded that the employee's treatment was in fact motivated by the employer's dislike of accommodations that had to be made for the employee's medical disability caused by sciatica.  However, the Appeal Tribunal held that the Employment Tribunal should have considered whether the £35,567 award for compensation should have been reduced for contributory fault of the employee.  Hendon & Finchley Times reports on the decision.

Recent Prisoner Free Exercise Cases

In Williams v. Bragg, (5th Cir., July 29, 2013), the 5th Circuit rejected an inmate's claim that his free exercise and RFRA rights were infringed when the prison's regular weekly Muslim congregational prayer service was cancelled on several occasions.

In Native American Council of Tribes v. Weber, 2013 U.S. Dist. LEXIS 105712 (D SD, July 29. 2013), a South Dakota federal district court denied the South Dakota Department of Corrections motion to stay pending appeal to an injunction that was awarded requiring that it allow tobacco to be used in Native American rituals.

In Field v. Beneze, 2013 U.S. Dist. LEXIS 105897 (D CO, July 29, 2013), a Colorado federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 105938, June 24, 2013) and dismissed an inmate's claim that his free exercise rights were infringed when, as he was removed from the general inmate population, his property was confiscated including religious materials.

In Giorgio v. Clarke, 2013 U.S. Dist. LEXIS 107262 (D MA, July 31, 2013), a Massachusetts federal district court allowed former Native American inmates to proceed against certain defendants on their complaint that while incarcerated they were denied access to sweat lodge ceremonies, use of prayer feathers, sage cleansing, and smudging ceremonies.

In Smolsky v. Department of Corrections, 2013 Pa. Commw. Unpub. LEXIS 606 (PA Commonw. Ct., Aug. 1, 2013), the Commonwealth Court of Pennsylvania rejected an inmate's claim that because his Roman Catholic faith prohibits lying, his free exercise rights were infringed when the sex offender treatment program forced him to admit that he committed crimes for which he is innocent.

In Davis v. Hubler, 2013 U.S. Dist. LEXIS 107585 (ED NC, July 30, 2013), a North Carolina federal district court permitted an inmate to proceed with his complaint that he is being denied the Nation of Islam Final Call weekly religious publication, but dismissed his complaint that the bean pies furnished him for Savior's Day were made in the prison kitchen rather than at the outside bakery he preferred.

In Donahue v. Pennsylvania, 2013 U.S. Dist. LEXIS 107880 (MD PA, July 30, 2013), a Pennsylvania federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 107518, June 4, 2013) and dismissed an inmate's claim that his religious prayer books were wrongfully seized by police when he was arrested. He sought their return, their exclusion as evidence in his upcoming state criminal trial, dismissal of criminal charges against him and millions of dollars in damages.

In Doe v. Sex Offender Registry Board, 2013 Mass. App. Unpub. LEXIS 808 (MA App., Aug. 2, 2013), a Massachusetts appellate court rejected an inmate's claim that his free exercise rights were violated by the Sex Offender Registry Board's negative or neutral reaction to his plans to attend church following his release. When he was offending, he told victims that he was a Sunday school teacher and planned to become a pastor.

In Robinson v. Parker, 2013 U.S. Dist. LEXIS 108455 (WD KY, Aug. 2, 2013), a Kentucky federal district court dismissed complaints by an inmate who is a member of the Moorish Science Temple of America that he is required to use the name under which he is convicted and not permitted to use "-El" after his surname.  Plaintiff had asserted both 1st Amendment retaliation and RLUIPA claims.

Negligence Claim Against Diocese Over Rape by Deacon May Proceed

In Doe v. Corporation of the Catholic Bishop of Yakima, 2013 U.S. Dist. LEXIS 109006 (ED WA, July 30, 2013), a Washington federal district court denied defendants' motion for summary judgment in a suit alleging negligence by the Catholic diocese, the bishop and the parish after a deacon raped a 17-year old male parishioner. The court said in part:

the Free Exercise Clause does not bar a negligence claim against Defendants for hiring Ramirez and placing him in a position of trust and authority from which he was able to sexually abuse Plaintiff....

It would be irrational to require a child sexual abuse victim, who seeks to bring a negligence claim against a church, to prove that the church had actual knowledge of the risk posed by its abuser employee. In effect, it would create a disincentive for a church to investigate prospective employees before placing them in positions of trust and authority over children. Instead, churches would be motivated to engage in "ostrich" behavior to avoid confronting – and thus being forced to act upon – potential warning signs about such  employees. Protecting children is a paramount policy consideration ... and it is ill-served if those trusted with such responsibility can blithely ignore red flags about their employees and subsequently avoid liability for the ensuing harm.

L.A. Religious Orders Release Personnel files Under 2007 Clergy Abuse Settlement

The Los Angeles Times reports that on Wednesday, 1700 pages of personnel files from 5 Los Angeles area Catholic religious orders were made public pursuant to a 2007 settlement with hundreds of sexual abuse claimants. Files were released by the Marianists, the Benedictines, the Oblates and two orders of nuns-- the Cabrini Sisters and the Sisters of St. Joseph of Carondele.  An additional 45 religious orders will release files in the coming months. Many of the files do not mention abuse allegations, or refer to them only obliquely.  According to the Times:

In the case of Benedictine priest Mathias Faue [full text of file], one supervisor wrote vaguely of “his problem” or “difficulty.” In the file of Oblate Father Ruben Martinez [full text of file], an order official repeatedly switched to Japanese characters to note sensitive subjects, including his admissions of “homosexuality” and “relations with boys.”

6th Circuit: Campus Outside Speaker Rules, Challenged By Evangelist, Are Vague

In McGlone v. Cheek, (6th Cir., Aug. 2, 2013), the U.S. 6th Circuit Court of Appeals held that a traveling Christian evangelist would likely succeed in showing that the University of Tennessee's policy requiring outsiders to obtain sponsorship in order to speak on campus is unconstitutionally vague.  Remanding with instructions to issue a preliminary injunction, the court explained:

[T]he University has insisted that, together, policy #1720-1-2 and the Freedom-of-Expression policy establish the University’s sponsorship requirement.  Policy #1720-1-2 makes no reference to on-campus speakers or sponsorship, but it says that guests are allowed on campus... [if] invited by a university student or employee.... The Freedom-of-Expression policy says that “[a]ny person sponsored by a registered campus organization is free to speak” on campus. Inexplicably, the University conflates both policies and concludes that the University’s sponsorship requirement clearly provides that students, faculty, and staff have the authority to grant sponsorship. As a result of the inconsistency between the two policies, it is unclear to the ordinary person who has the authority to grant sponsorship.

AP reports on the decision.  (See prior related posting.)

An Attempt To Be Complete In Covering the Contraceptive Coverage Mandate Decisions

As previously reported, among the many for-profit businesses challenging the Affordable Care Act's contraceptive coverage mandate was Michigan-based Eden Foods.   There have been at least two opinions in the case that seem to have fallen between the cracks of Religion Clause's coverage.  A March 22, 2013 district court opinion denied an emergency motion for a temporary restraining order in the case, and it appears that subsequently the district court denied a preliminary injunction as well.  Then in a June 28, 2013 opinion, the U.S. 6th Circuit Court of Appeals denied a motion for a preliminary injunction pending appeal of the district court's denial of a preliminary injunction. The 6th Circuit said in part: "We are not persuaded, at this stage of the proceedings, that a for-profit corporation has rights under the RFRA."

Pastor Liable For Self-Employment Tax

In Rogers v. Commissioner, (TC, Aug. 1, 2013), the United States Tax Court held that a pastor at the Pentecostals of Wisconsin is liable for self-employment tax on $43,200 in home mortgage, utility and credit card payments made on his behalf by his church.  He argued that members of religious orders who have taken a vow of poverty are not subject to tax on income received as agents of the orders of which they are members.  However, the court concluded that here the taxpayer was never paid a salary by a third party that he remitted to his church. Instead, the church merely paid some of his expenses. The payments were not properly designated as a parsonage allowance, nor did petitioner file the required certificate to exempt himself from self-employment tax under Sec. 1402(e). [Thanks to Steven H. Sholk for the lead.]

Bangladesh Court Voids Registration of Country's Largest Islamic Party

In Bangladesh yesterday, the High Court in Dhaka declared that the registration of the country's largest Islamic party with the Bangladeshi Election Commission is illegal and void. According to the Frontier Post, the ruling against Jamaat-i-Islami came after a petition was filed arguing that the party's charter conflicts with the country's secular constitution. BD News24 reports that Jamaat-i-Islami now plans to shut down the country for 48 hours beginning Aug. 12 in protest of the court's decision.

Muslim Groups Oppose NYPD's Kelly For Homeland Security Spot

According to Religion News Service yesterday, Muslim-American groups are expressing growing opposition to suggestions that President Obama may nominate NYPD Commissioner Raymond Kelly as head of the Department of Homeland Security. He would replace Janet Napolitano who is leaving DHS to head the University of California System. The Muslim groups say that Kelly oversaw an NYPD surveillance program that targeted Muslims solely on the basis of their religion. (See prior posting.)

7th Circuit: Factual Issue Remains On Whether Employer Had Notice That Leave Request Was Religious In Nature

In Adeyeye v. Heartland Sweetners, L.L.C., (7th Cir., July 31, 2013), the U.S. 7th Circuit Court of Appeals reversed a district court's summary judgment for defendant in a Title VII religious accommodation case. The request by plaintiff, a native of Nigeria, to take several weeks of unpaid leave to travel to Nigeria to lead his father's burial rites was refused by his employer. The Court of Appeals rejected the district court's finding that the employer did not have notice of the religious nature of the request. It held that a genuine issue of material fact remained, saying:

We recognize, of course, that the religious beliefs and practices Adeyeye referred to are not as familiar as beliefs and practices closer to the modern American mainstream. But the protections of Title VII are not limited to familiar religions.

Saudi Activist Sentenced To 7 Years and 600 Lashes For Insulting Islam

Human Rights Watch reports that on July 29 a Saudi Arabian court sentenced blogger Raif Badawi to 600 lashes and 7 years in prison for insulting Islam through his website and in comments he made on television. Three months was added for "parental disobedience." The court also ordered his website closed. An apostasy charge against Badawi was dropped after he affirmed to the court that he is a Muslim and recited the Shehadeh. Badawi, who created his Free Saudi Liberals website in 2008 to encourage debate on religious and political matters in Saudi Arabia, has been detained since June 2012.

FFRF Protests Religious Quotes In U.S. Passport Design

Last week, the Freedom From Religion Foundation again protested to the U.S. State Department over the design of U.S. passports. (Press release.)  The passport, redesigned in 2007, includes a quote on each page aimed at "reflecting the hope and success that is the United States of America." (Background.) In its letter (full text) to the State Department, FFRF raised Establishment Clause concerns about four of the quotes which explicitly mention "God." It also made a Freedom of Information Act request for documents relating to decisions on the redesign.

Display of Crosses On Riverfront Enjoined

In Cabral v. City of Evansville, Indiana, (SD IN, July 31, 2013), an Indiana federal district court permanently enjoined the city of Evansville from permitting a group of local religious organizations, headed by the Westside Christian Church, from erecting a planned religious display on the city's Riverfront. The proposed display consisted of up to 31 six-foot tall crosses to be spread over the 4-block Riverfront area.  Finding that the proposed display would violate the Establishment Clause, the court said in part:

based on the size and scope of the project, this planned display of crosses would convey a message of the City’s endorsement of Christianity to the reasonable observer....

The City’s attempts to dilute the religious impact of the display by prohibiting written messages on the Crosses and by requiring disclaimers, while generally commendable, no doubt reflect its own recognition of and sensitivity to the magnitude of the display and the constitutional concerns it raises. We emphasize, it is not the inclusion of the crosses as such that causes this display to run afoul of the First Amendment; rather, it is the forcefulness of the message being conveyed, based on the significant scope and size and duration of the overall display....

This ruling should not be understood to foreclose or prohibit any and all unattended displays on the Riverfront area that convey a religious message. To stay within constitutional bounds, however, it must stop short of creating a message that overwhelms the nature of the public forum thereby transforming it into government endorsed religious speech.

AP reports on the decision.

Pennsylvania Health Department Sues To Stop County From Issuing Same-Sex Marriage Licenses

As previously reported, in Montgomery County, Pennsylvania (suburban Philadelphia), the county's Register of Wills, D. Bruce Hanes, last week began to issue marriage licenses to same-sex couples, despite the legal ban on such marriages in the state. Now, according to the Philadelphia Inquirer, the state Department of Health on Tuesday filed suit in Commonwealth Court seeking a writ of mandamus to stop the county from issuing more licenses or accepting marriage certificates from same-sex couples. The suit claims that the county's actions are leading couples to erroneously believe that they have entered a valid marriage.  In response, County Solicitor Ray McGarry issued a statement saying:

While it comes as no surprise that the Corbett Administration has filed an action seeking to enjoin marriage equality in Montgomery County, the petition filed today in Commonwealth Court by the state Department of Health has serious flaws. Montgomery County will be filing a response shortly. In the meantime, the Register of Wills office will continue to issue marriage licenses to same-sex couples.

Court Upholds Sale of Synagogue

In Chomsky v. Sewitch, (NJ App., July 23, 2013), the New Jersey Superior Court Appellate Division rejected an attack on the sale of an Orthodox synagogue building in Perth Amboy to Science of Spirituality, Inc. Plaintiffs argued that the congregation was bound by Jewish religious law which prohibits the sale of the building to a non-Jewish religious organization. They claimed that the dispute should be transferred to a beth din (Jewish religious court). Finally they argued that the synagogue's actions involved self-dealing, violated the congregations's bylaws and violated the New Jersey non-profit law. Plaintiffs then commenced their own action in a beth din.  Affirming the trial court, the appeals court said:

we conclude the [trial] judge properly employed the neutral principles approach to consider and determine only "those disputes involv[ing] purely secular issues" that were capable of resolution "without the judiciary becoming enmeshed in matters of faith or doctrine."

New Jersey Jewish News reports on the decision.

TRO Denied In Attempt To Stop Same-Sex Marriages In Rhode Island On Religious Freedom Grounds

According to the Providence Journal, a Rhode Island Superior Court judge yesterday denied a temporary restraining order in a suit challenging the constitutionality of the state's recently enacted same-sex marriage law which is scheduled to take effect Aug. 1. (See prior posting.) Plaintiff argued that the law will violate the state constitution's religious freedom protections by forcing people to accept in public spheres, such as schools, a practice that they oppose on religious grounds.

UPDATE: On Aug. 9, the court also denied a preliminary injunction in the case. (Providence Journal).

Perpetual Care Trust Funds Shielded From Archdiocese's Creditors In Bankruptcy-- Corrected

AP reports that a Wisconsin federal court on Monday ruled that $50 million in a cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the bankruptcy reorganization of the Milwaukee Catholic Archdiocese. The funds came from sale of cemetery lots and mausoleums.  In a statement yesterday, the Archdiocese said:

Because these funds were held in trust as prescribed by Canon Law, they were independent of the general assets and could only be used for their intended and pledged purpose – to care for the resting places of the departed as sacred places under Canon law. As the Judge said, “removing some or all of these funds from the trust and placing them in the bankruptcy estate would undoubtedly put “substantial pressure” on Archbishop Listecki to “modify [his] behavior” and “violate [his] beliefs.”

UPDATE AND CORRECTION: The decision is In re Archdiocese of Milwaukee is at 2013 U.S. Dist. LEXIS 106392, (ED WI, July 29, 2013). Contrary to the earlier version of this post, the decision is one of the district court reversing a bankruptcy court's earlier decision. And here is a non-Lexis source for the full opinion.

Court Refuses To Dismiss Claims Against Diocese Over Abusive Priest

In Jane Doe #2 v. Norwich Roman Catholic Diocesan Corp., 2013 Conn. Super. LEXIS 1516 (CT Super., July 8, 2013), a Connecticut trial court refused to strike claims against a Catholic diocese for failure to report, supervise and remove a priest charged with child abuse, including claims for breach of fiduciary duty. The diocese argued that the the claims excessively burden its exercise of religion. The court responded in part:

Although the United States Supreme Court's decision in Hosanna-Tabor may indeed bar some of the allegations found in the complaint, such as the defendants' allegedly wrongful failure to remove Father Shea from the priesthood, Hosanna-Tabor does not preclude all of the specifications of negligence and reckless conduct found in counts one through six. Specifically, the allegations of failure to warn and negligent supervision are not clearly precluded by Hosanna-Tabor. Accordingly, the court cannot strike these counts on the basis of the first amendment.

Israeli-Palestinian Peace Talks Begin With Timing Impacted By Ramadan

Last night marked the beginning of New Israeli-Palestinian peace talks at the State Department. CBS News reported:

At sundown Monday, Palestinian and Israeli negotiators will meet over an Iftar dinner hosted by Secretary of State John Kerry at the State Department. The meal, which marks the breaking of the day-long fast observed by Muslims during the holy month of Ramadan, is a symbolic start to the first round of face-to-face negotiations between the two parties for the first time in three years.

Earlier in the day, some State Department reporters seemed a bit culturally challenged by it all. Here is an exchange at yesterday's press briefing by State Department spokesperson Jen Psaki:

QUESTION: And the dinner tonight is at State or at his house or --

MS. PSAKI: It’s at the State Department.

QUESTION: Okay. Thank you.

QUESTION: It’s an Iftar dinner or a regular dinner?

MS. PSAKI: It is an Iftar dinner.

QUESTION: Iftar.

QUESTION: Isn’t an Iftar dinner – isn’t that a regular dinner?

MS. PSAKI: There will be food served at an Iftar dinner, yes.

Report Focuses On Problems With Virginia's Religious Opt Out of Public Education

Sunday's Washington Post highlighted the experiences of 21-year old Georgetown University student Josh Powell who objects to the poor education he received and his siblings are receiving after their parents opted out of public education on religious grounds under Va. Code Sec. 22.1-254(B)(1). The Post reports:

Powell was taught at home, his parents using a religious exemption that allows families to entirely opt out of public education, a Virginia law that is unlike any other in the country. That means that not only are their children excused from attending school — as those educated under the state’s home-school statute are — but they also are exempt from all government oversight.

School officials don’t ever ask them for transcripts, test scores or proof of education of any kind: Parents have total control.

Powell’s family encapsulates the debate over the long-standing law, with his parents earnestly trying to provide an education that reflects their beliefs and their eldest son objecting that without any structure or official guidance, children are getting shortchanged. Their disagreement, at its core, is about what they think is most essential that children learn — and whether government, or families, should define that.

Suit Challenges Kentucky's Refusal To Recognize Same-Sex Marriage

On Friday, a same-sex couple, Gregory Bourke and Michael De Leon, and their two adopted children filed suit in federal district court challenging the constitutionality of Kentucky's refusal to recognize the couple's 2004 Canadian marriage.  The two men have been together for 31 years.  The complaint (full text) in Bourke v. Breshear, (WD KY, filed 7/26/2013) alleges that Kentucky laws barring same-sex marriage and recognition of same-sex marriages from other jurisdictions violate the 14th Amendment's due process and equal protection clauses. The Louisville Courier-Journal reports on the filing of the lawsuit. [Thanks to Tom E. Rutledge for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Monika Ambrus, The European Court of Human Rights and Standards of Proof in Religion Cases, (8 Religion and Human Rights 2 (2013), pp. 107-137, Forthcoming).
• Perry Dane, Doctrine and Deep Structure in the Contraception Mandate Debate,(July 21, 2013).
• Charles Tiefer, Jonathan W. Cuneo & Annie Reiner, Could This Train Make It Through: The Law and Strategy of the Gold Train Case, (Yale Human Rights and Development Law Journal, Vol. 15, 2012, pp. 129-154).
• Ian C. Bartrum, Religion and the Restatements, (Brooklyn Law Review, Forthcoming).
• Richard W. Garnett, 'The Freedom of the Church': (Towards) an Exposition, Translation, and Defense, (Journal of Contemporary Legal Issues, Forthcoming (2013)).

From SmartCILP:

• Todd A. DeMitchell, David J. Herbert & Loan T. Phan, The University Curriculum and the Constitution: Personal Beliefs and Professional Ethics in Graduate School Counseling Programs, 39 Journal of College and University Law 303-345 (2013).
• Jane C. Ginsburg, Proto-property in Literary and Artistic Works: Sixteenth-Century Papal Printing Privileges, 36 Columbia Journal of Law & the Arts 345-458 (2013).
• The Lautsi Debate -- Fin. Articles by Dimitrios Kyritsis, Stavros Tsakyrakis and Lorenzo Zucca; reply by J.H.H. Weiler. 11 I.Con: International Journsal of Constitutional Law 200-233 (2013).

Recent Books:

• Vincent Phillip Munoz, Religious Liberty and the American Supreme Court: The Essential Cases and Documents, (Rowman & Littlefield, July 2013).
• Robin Griffith-Jones (ed.), Islam and English Law: Rights, Responsibilities and the Place of Shari’a, (Cambridge Univ. Press, May 2013), Reviewed by Financial Times.

Annual U.S.-China Human Rights Dialogue Scheduled For this Week

The U.S. State Department has announced that the next session of the annual U.S.-China Human Rights Dialogue will be held, July 30-31, in Kunming, China. According to a State Department spokesperson: "The two sides will discuss rule of law, freedom of religion, freedom of expression, labor rights, rights of ethnic minorities, and other human rights issues over the course of the dialogue."

New Orleans Amends "Aggressive Solicitation" Ordinance As Litigation Goes On

AP reports that on Thursday, the city of New Orleans revised its "aggressive solicitation" ordinance to eliminate the ban on loitering or gathering on Bourbon Street to disseminate "any social, political, or religious message between the hours of sunset and sunrise." The change also eliminated the ban on "conduct which reasonably tends to arouse alarm or anger in others." A federal court last September issued a TRO barring enforcement of the ordinance in a suit brought by a street preacher who was arrested during the Southern Decadence gay pride festival in 2012. (See prior posting.)

Recent Prisoner Free Exercise Cases

In LeBaron v. Spencer, (1st Cir., July 22, 2013), the 1st Circuit permitted a Messianic Jewish inmate to move ahead with his 1st Amendment and RLUIPA challenges seeking a kosher diet, access to a Messianic synagogue and group prayer, but dismissed his equal protection, retaliation and due process conspiracy claims.

In Knight v. Thompson, (11th Cir., July 26, 2013), the 11th Circuit rejected Native American inmates' RLUIPA challenge to Alabama prison system grooming rules that prohibited them from wearing long hair as required by their religion. The court held that the short-hair policy for male inmates is the least restrictive means of furthering compelling governmental interests in security, discipline, hygiene and safety.

In Nelson v. Jackson, 2013 U.S. Dist. LEXIS 102121 (SD OH, July 18, 2013), an Ohio federal magistrate judge recommended allowing a Jewish inmate to proceed with his free exercise, RLUIPA and 8th Amendment claims growing out of his complaint that while in the kosher meal program he was served meat and dairy together at the same meal and was required to cook his meal on the Sabbath. The court however denied plaintiff's request for a preliminary injunction.

In Green v. Dart, 2013 U.S. Dist. LEXIS 103182 (ND IL, July 23, 2013), an Illinois federal district court dismissed a complaint by a maximum security pre-trial detainee that he has been unable to meet with a Baptist minister and attend religious services in a chapel.

In Porter v. Wegman, 2013 U.S. Dist. LEXIS 103959 (ED CA, July 22, 2013), a California federal magistrate judge recommended granting a preliminary injunction requiring that an inmate be provided a kosher diet during the eight-day period of the Spring 2014 Yahweh Passover Feast of Unleavened Bread.

In Muhammad v. Arizona Department of Corrections. 2013 U.S. Dist. LEXIS 104317 (D AZ, July 25, 2013), an Arizona federal district court permitted a Muslim inmate to proceed with his complaints regarding a lack of pre-sunrise meals during Ramadan, denial of a religious diet, and refusal to allow him to openly wear a kufi. A number of other claims were dismissed, including his complaint that he was prohibited from gathering 5 times a day with other Ahlus-Sunnah Wal-Jamaah Muslims for prayer.

In Baze v. Parker, 2013 U.S. Dist. LEXIS 104708 (WD KY, July 25, 2013), a Kentucky federal district court dismissed a death row inmate's complaint about the denial of a pastoral visit to him.

In Jenkins v. Meyers, 2013 U.S. Dist. LEXIS 105165 (ED WA, July 25, 2013), a Washington federal district court dismissed a Muslim inmate's complaint that prayer oil he ordered was rejected because the vendor he used was no longer an authorized vendor.

In Toland v. Williams, 2013 U.S. Dist. LEXIS 104440 (SD GA, July 25, 2013), a Georgia federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 105213, June 13, 2013) and dismissed an inmate's complaint that he did not receive religiously-mandated vegan meals.

5th Circuit Dismisses "Candy Cane" Religious Expression Case For Failure To Use Certified Mail In Pre-Suit Notice

In the so-called "candy-cane case", Morgan v. Plano Independent School District, (5th Cir., July 26, 2013), the U.S. 5th Circuit Court of Appeals yesterday, in a 2-1 decision, dismissed the remaining claims on jurisdictional grounds because plaintiff gave notice of his lawsuit to the school by fax, regular mail and e-mail, rather than by certified mail return receipt requested as specified in the Texas Religious Freedom Restoration Act (TFRA), Sec. 110.006.  In the suit, originally filed 8 years ago by parents of several elementary school students, plaintiffs challenged school policy which allowed students to distribute only secular gifts, not religious ones, at the school's annual winter break party. The policy prevented  a third-grader from distributing a “candy cane ink pen” with a laminated card containing a religious message about the legend of the candy cane and its Christian origins. The majority opinion by Judge Davis held that TFRA's pre-suit notice requirement is a jurisdictional prerequisite to bringing suit.  Judge Elrod, dissenting, would have certified to the Texas Supreme Court the question of whether or not TRFRA's notice-by-certified mail requirement is jurisdictional. (See prior related posting.)

Obama Hosts Annual White House Iftar Dinner

On Thursday night, President Obama hosted the White House's annual Iftar dinner to mark Ramadan.  In his remarks (full text) he said in part:

Here at the White House, we now have a tradition of celebrating the sacred days of our various faiths.  And these are occasions to reflect on the teachings that so many religions share; to celebrate the diversity that defines our country; and to reaffirm one of our most deeply held beliefs, that here in America and around the world, people should be free to choose the God that they worship however they choose, to practice their faiths freely, or to practice no faith at all.

Honored guests at this year's event were Muslim entrepreneurs and innovators. Obama said:

Throughout our history, Islam has contributed to the character of our country, and Muslim Americans, and their good works, have helped to build our nation -- and we’ve seen the results.  We’ve seen those results in generations of Muslim immigrants -- farmers and factory workers, helping to lay the railroads and build our cities.  Muslim innovators who helped build some of our highest skyscrapers and who helped to unlock the secrets of our universe. 

Every day, Muslim Americans are helping to shape the way that we think and the way that we work and the way that we do business.  And that’s the spirit that we celebrate tonight -- the dreamers, the creators whose ideas are pioneering new industries, creating new jobs and unleashing new opportunities for all of us.

3rd Circuit Rejects ACA Challenge: For-Profit Corporations Cannot Engage In Religious Exercise

In Conestoga Wood Specialties Corp. v. Secretary of U.S. Department of Health and Human Services, (3rd Cir., July 26, 2013), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision denied a preliminary injunction sought by a family-owned business to stop enforcement of the Affordable Care Act contraceptive coverage mandate.  Rejecting free exercise and RFRA claims, Judge Cowan's majority opinion held that "for-profit, secular corporations cannot engage in religious exercise," and the conscience rights of the owners of a corporation do not pass through to the corporation.  Cowan in his majority opinion wrote, in part:

We are unable to determine that the "nature, history, and purpose" of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision....

We recognize the fundamental importance of the free exercise of religion.... Thus, our decision here is in no way intended to marginalize the Hahns' commitment to the Mennonite faith. We accept that the Hahns sincerely believe that the termination of a fertilized embryo constitutes an ―intrinsic evil and a sin against God to which they are held accountable ... and that it would be a sin to pay for or contribute to the use of contraceptives which may have such a result. We simply conclude that the law has long recognized the distinction between the owners of a corporation and the corporation itself. A holding to the contrary—that a for-profit corporation can engage in religious exercise—would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.

Judge Jordan, dissenting, wrote in part:

 My colleagues, at the government's urging, are willing to say that the Hahns' choice to operate their business as a corporation carries with it the consequence that their rights of conscience are forfeit.

That deeply disappointing ruling rests on a cramped and confused understanding of the religious rights preserved by Congressional action and the Constitution. The government takes us down a rabbit hole where religious rights are determined by the tax code, with non-profit corporations able to express religious sentiments while for-profit corporations and their owners are told that business is business and faith is irrelevant. Meanwhile, up on the surface, where people try to live lives of integrity and purpose, that kind of division sounds as hollow as it truly is.

[Thanks to Jeffrey Pasek for the lead.] 

Malaysian Court Invalidates Father's Conversion of Children To Islam Without Mother's Consent

AFP reports that a Malaysian high court yesterday ruled that the 2009 conversion to Islam of three Hindu children to be unconstitutional.  The court said that the father-- who converted to Islam and brought the children with him-- had failed to take the mother and children to Islamic authorities for their consent to the conversion.  If the conversion had been upheld, the Hindu mother of the children would lose custody-- which a court granted her in 2010-- since under Shariah law, a non-Muslim parent cannot share custody of converted children. Earlier this month, the government withdrew a proposal to change Malaysian law to allow conversions of children to Islam by one parent.

UPDATE: The full text of the opinion in In re the Certificate of Conversion to Islam, (High Court, July 25, 2013) is now available online.

House Debates Atheist/ Humanist Chaplains In Defense Appropriations Bill

On July 23, the House of Representatives, by a vote of 253-173, approved an amendment to HR 2397, the 2014 Department of Defense Appropriations Act, requiring that all military chaplains must receive an endorsement from a qualified religious organization.  The amendment, introduced by Rep. Fleming of Louisiana, provides:

None of the funds made available by this Act may be used to appoint chaplains for the military departments in contravention of Department of Defense Instruction 1304.28, ....

The amendment generated an interesting debate (full text). Here are some excerpts:

  Mr. FLEMING....   My amendment is fairly simple. The DOD is permitted to appoint military chaplains--individuals who minister to the spiritual needs of any and all members of the armed services--in accordance with the current DOD policy. Chaplains must possess appropriate educational credentials, 2 years of religious leadership experience, and, more importantly, must receive an endorsement from a qualified religious organization attesting to the tenets of the endorser's faith.

 In June, the Members of this body--Democrats and Republicans alike--twice affirmed that the military is not permitted to appoint atheist chaplains. Despite these recent votes and by completely bypassing Congress--the voice of the people--and current DOD standards, it has been confirmed that the military is considering the possibility of appointing an atheist chaplain. Since the formation of the chaplaincy in 1775, chaplains have been affiliated with faith and spirituality. By definition, chaplains minister to the spiritual needs of our men and women in the armed services--a vital function that an individual without any inclination towards spirituality would not be able to perform....

     Mr. POLIS. [Colorado]. Mr. Chairman, I rise in opposition to the Fleming amendment.

I think there is a basic misunderstanding here about the needs of people who lack a particular faith tradition. I would also point out that we already ordain nontheistic chaplains in our military, including Buddhists, which is a nontheistic faith. Some Unitarians may also have a nontheistic faith tradition. However, over 20 percent of the members of our military identify as nonbelievers. While, of course, their needs should be catered to by members of the chaplaincy from diverse faiths, it's only fair to have their humanism, or outlooks, represented....

Now, to be clear, the military has not announced plans to move forward with ordaining humanist chaplains; but what this amendment does is to lock in place a 2004 rule, placing it in statute and preventing the military, even if they feel the need should arise for the good of the chaplaincy, from having the flexibility they need to appoint humanist chaplains....

Mr. BRIDENSTINE....  My constituents back in Oklahoma are shaking their heads. The secular left is so invested in ripping God from everything that I must stand here with my friend Dr. Fleming in order to prohibit Obama's Department of Defense from establishing an oxymoron--atheist chaplains....

   Mr. POLIS....  Increasingly, there are seminaries who prepare humanist chaplains for ordination and work in the field, in hospitals, in universities, and again in the militaries that have them. I personally hope that this is a direction that our military considers in the future....

   Mr. FLEMING. Mr. Chairman, first of all, with all due respect to my good friend from Colorado, there is no way that an atheist chaplain or atheist whatever can minister to the spiritual needs of a Christian or a Muslim, or a Jew, for that matter....

   In the final analysis, I believe that an atheist chaplain would be the last person in the world that we would want for a dying soldier who needs that last moment of counseling in their life.

Huffington Post, reporting on the amendment, suggests that the actual language of the amendment will not prevent appointment of humanist chaplains:

Jason Torpy, president of the Military Association of Atheists and Freethinkers, points out that military regulations already require that chaplains be endorsed — and not necessarily by an organization of believers in a divinity.

“The language (of the amendment) only requires adherence to the applicable instruction, which in no way restricts chaplains to only those who believe in some higher power,” he said. “Their amendment does nothing, so there’s nothing to be done in response. It just shows their ignorance about atheists, humanists, and military regulations.”

As reported by Christian Fighter Pilot blog, the House twice voted down an earlier amendment by Rep. Polis that would have specifically authorized appointment of chaplains  endorsed by non-theistic organizations.

On July 24, the House passed the full Appropriations bill by a vote of 315- 109 and sent it to the Senate for consideration.

North Carolina Legislature Passes Law Described As Anti-Sharia Bill

The North Carolina legislature gave final passage yesterday, and sent to the governor for signature, HB 522 (full text), described by its supporters as a ban on enforcement of Sharia law. (Background from WFAE News.) The Act only applies to divorce, alimony and child custody cases. The bill prohibits the application of foreign law, or of any contract provisions, that would violate a party's fundamental constitutional rights.

UPDATE: RNS reported on Aug. 26 that Gov. Pat McCrory has allowed the bill to become law without formally signing it.