Court Says Spousal Privilege Does Not Apply To Couple In Civil Union

In Commonwealth of Kentucky v. Clary, (KY Cir. Ct., Sept. 23, 2013), a Kentucky trial court refused to apply the spousal privilege of Kentucky Rule of Evidence 504 to a couple who are parties to a Vermont civil union.  Under the rule, a spouse may refuse to testify, or prevent his or her spouse from testifying, about events occurring after the date of their marriage.  According to the Louisville Courier Journal, prosecutors trying Bobi Jo Clary for murder claim that her partner Geneva Case heard her admit to killing the victim, and saw Clary clean blood out of the victim's van and abandon it. The court explained that it need not decide whether the privilege must be applied to same-sex married couples since here the parties were only in a civil union.  Even though Vermont now recognizes same-sex marriage, the parties to a civil union in Vermont are required to take specified steps to convert the civil union to a marriage even for Vermont to recognize it. [Thanks to Thomas Rutledge for the lead.]

State Appeals Court Resolves Serbian Orthodox Church Dispute

Puskar v. Krco, (IL App., Sept. 23, 2013), involves a complicated dispute over whether or not the Serbian Orthodox Metropolitanante of New Gracanica Diocese of the United States and Canada reunited with the Serbian Orthodox Church based in Belgrade, Serbia.  In 1992, the two organizations took steps to unite by adopting Transitional Regulations.  Bishop Longin, appointed by the Belgrade church, announced in 2009 that a reorganization had occurred and that there is no longer a split between the Metropolitanante Diocese and the Belgrade Church.  Plaintiffs sued for a declaratory judgment and injunction, claiming that the Assembly of the Metropolitanante Diocese never authorized a reorganization and retained self-governing authority. The trial court dismissed on the basis of the ecclesiastical abstention doctrine, concluding that the focus of the suit was on the Bishop's duties and whether he had violated them.

In a 2-1 decision, a majority of the Illinois Court of Appeals disagreed, holding that plaintiffs merely sought an interpretation of the contractual relationship between the two churches, and in particular whether the Transitional Regulations are still in effect. The majority concluded that the Transitional Regulations expired according to their terms in 1995, and so the Metroplitanante Diocese is no longer governed by them.  Judge Spence dissenting argued that the case is primarily a dispute over church polity which the court is barred from deciding under the ecclesiastical abstention doctrine.

Drug Paraphernalia Charges Burden Rastafarian Teen's Free Exercise Rights

In In the Matter of the Welfare of: J.J.M.A., (MN App., Sept. 23, 2013), a Minnesota appellate court held that a 15-year old Rastafarian boy's free exercise rights protected by the Minnesota Constitution were violated when he was adjudicated delinquent for possessing drug paraphernalia. The boy claimed that his religion requires him to carry his cannabis pipe.  The court found that the drug paraphernalia statute as applied burdens the boy's sincerely held religious beliefs, and the state failed to show that the statute as applied is the least restrictive means to accomplish a compelling state interest. [Thanks to Volokh Conspiracy for the lead.] 

Russian Court In Controversial Decision Bans Salafist Translation of Qur'an

In Russia last week, the Novorossiysk Oktyabrsky District Court ruled that a translation of the Qur'an into Russian by Azerbaijani philosopher Elmir Kuliyev should be banned under the federal law barring extremist materials, and that copies of it should be destroyed. The translation was published in Saudi Arabia in 2002.  According to Interfax and AP, Ravil Gainutdin, head of the Council of Muftis of Russia, strongly criticized the court's ruling in an open letter to President Vladimir Putin released Monday. He said the ruling violates freedom of religion protections in the Russian Constitution and international law, and called for the case to be retried with experts on Islam as witnesses. However, Farid Salman, the head of the Ulema Council of the All-Russian Muslim Board, has a different opinion. He agreed with the court's ruling, saying that Kuliyev's views reflect "the Salafi school, not the sect of Islam that is traditionally practiced by Russia's Muslims."

UPDATE: Forum 18 has more details on the decision and the mixed reaction to it among Russian Muslims.

New Google Website Simplifies Comparative Constitutional Analysis

Google announced yesterday that it has launched Constitute, a new website, created by the Comparative Constitutions Project that digitizes and makes searchable the world's 160 national constitutions.  Particularly relevant to Religion Clause readers, by browsing and clicking Constitute's topics menu, a user can easily pull up the relevant texts from the constitutions of 150 countries on freedom of religion. Mashable has more on the new website.

Ceremonial Renaming of Street Leads to Unusual Lawsuit Claiming Religious Liberty Violation

In August, in what the local press called "street naming season in Patterson," the Patterson, New Jersey City Council renamed a section of Van Houten Street on which the Jalalabad Jam-E-Masjid mosque is located as Alhaj Forman Ali Street to honor a local Muslim who was said to have played an instrumental role in the founding of the Islamic Foundation of New Jersey that built the mosque.  The seemingly innocuous resolution however has become extremely controversial in the Bangladeshi Muslim community of Patterson.

 According to yesterday's Patterson Press, leaders of the mosque say that they were not consulted on the ceremonial resolution, and that the renaming violates their religious beliefs.  They say that it is a fundamental principle of Islam that the mosque belongs to the entire community, and no one person or family may be honored above others in connection with their contribution to the mosque. They say that many members threaten to leave the mosque because it has been tainted as a place of worship by the naming of the street in front of it in honor of one person. They also claim that Councilman Mohammed Aktraruzzman who proposed the ceremonial resolution did so to repay his political supporters, and that the resolution exaggerates Ali's contributions to the Muslim community.  City Council is scheduled to vote today on whether to rescind the August resolution.  Ahead of that vote, on Sunday, mosque leaders filed a federal lawsuit claiming that the actions of city officials violated their free exercise rights.

Abercrombie Settles Two EEOC Lawsuits; Will Modify "Look Policy" To Accommodate Hijab

Clothing retailer Abercrombie & Fitch has settled two lawsuits brought by the EEOC challenging the company's "look policy" under which Abercrombie refused to permit Muslim employees to wear a hijab (head scarf).  AP and Religion News Service yesterday reported that the company will now permit employees to wear the hijab.  In the settlements, Abercrombie also will pay $48,000 in damages to Hani Khan who was fired when a new district manager visited the store and saw her head scarf. (See prior posting.)  It will pay $23,000 to Halla Banafa who was not hired after she wore a hijab to her job interview. (See prior posting.)

Egyptian Court Outlaws Muslim Brotherhood; Leaders Arrested; Assets Frozen

AP reports that in Egypt yesterday, the Cairo Court for Urgent Matters ordered the Muslim Brotherhood banned and its assets confiscated. The ruling covers the Brotherhood itself, as well as its affiliates and any institution receiving financial support from it.  The court ordered confiscation of all the organization's assets, and the creation of an independent committee to manage the group's funds until further orders from the court. In ordering the ban, the court said that the Brotherhood had used Islam "as a cover to activities that violate Islam and its rulings."  If the ban is upheld on appeal, authorities will be able to close down the Brotherhood's network of businesses, schools, hospitals and charities. For 85 years prior to 2011, the Brotherhood had been outlawed and operated under cover in Egypt. Separately, AP reports that on Tuesday authorities arrested senior leaders of the Brotherhood and the Cairo Criminal Court froze the assets of 14 Brotherhood leaders, including Mohammed Badie.

Ontario Legislature Rejects Quebec Limits On Religious Dress

As previously reported, last month Quebec's ruling Party Quebecois announced it would introduce a Charter of Quebec Values which, among other things, will ban public employees from wearing religious head coverings or visible crucifixes in the workplace. Last Thursday, as reported by JTA, the Legislative Assembly of Ontario unanimously passed a resolution (full text at pg. 3) disagreeing with Quebec's move.  The resolution provides:

That, in the opinion of this House, the Government of Ontario should oppose any legislation that would restrict or prohibit people's freedom of expression and religion in public places and affirm that Ontario greatly values our diverse population and the social, cultural and economic contributions they make to help our society thrive.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, Rethinking the Law, Not Abandoning It: A Comment on 'Overlapping Jurisdictions', (4 Faulkner Law Review 351 (2013)).
• Jordan J. Ballor, The Ecumenical Challenge of Catholicity, (Journal of Christian Legal Thought 3, No. 2 (Fall 2013)).
• Caroline Mala Corbin, Corporate Religious Liberty, (September 18, 2013).
• Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion,(September 19, 2013).
• Dhrubajyoti Bhattacharya, At the Intersection of Law, Human Rights, and Religion, (Global Health Disputes and Disparities (Routledge, London: 2012)).
• Helen J. Knowles, Taking Justice Kennedy Seriously: Why Windsor Was Decided 'Quite Apart from Principles of Federalism', (September 1, 2013).
• Julien Mailland, The Blues Brothers and the American Constitutional Protection of Hate Speech: Teaching the Meaning of the First Amendment to Foreign Audiences, (Michigan State International Law Review, Vol. 21, No. 2, p. 451, 2013).
• Douglas NeJaime, Windsor's Right to Marry, (123 Yale Law Journal Online 219 (2013)).
• Jade Wong & Andreas Ortmann, Do Donors Care about the Price of Giving? A Review of the Evidence, with some Theory to Organize It, (UNSW Australian School of Business Research Paper No. 2013-22 (2013)). 

From SSRN-- European and Islamic Law:

• Rafael Palomino, Manual Breve de Derecho Eclesiástico del Estado (Spanish Law and Religion in a Nutshell), (January 9, 2013).
• Casey Jo Cooper, From the Watch Tower to the Acropolis: The Search for a Consistent Religious Freedom Standard in an Inconsistent World, (Emory International Law Review, Vol. 28, No. 1, 2014, Forthcoming).
• Monica Lugato, National Policy Towards Religious Associations within the Framework of European Law, (Il Diritto dell'Unione Europea, 3/2013, Forthcoming).
• Tobias Lock, An Additional Protective Layer: The Case of Religious Discrimination in the United Kingdom and Germany, (Edinburgh School of Law Research Paper No. 2013/32 (2013)).
• Hamid Harasani, The Role of Ijtihād in Progressing Islamic Law in Modern Times, (10 US-China Law Review 361).

From SmartCILP:

• Robert A. Destro,"You Have the Right to Remain Silent": Does the U.S. Constitution Require Public Affirmation of Same-Sex Marriage?, 27 BYU Journal of Public Law 397-440 (2013).
• Pascale Fournier & Pascal McDougall, False Jurisdictions? A Revisionist Take On Customary (Religious) Law in Germany, 48 Texas International Law Journal 435-463 (2013).

Rhode Island High School Gets New Secular Mural

In 2012, a Rhode Island federal district court in a high profile Establishment Clause case ordered Cranston (RI) High School to take down a prayer mural that had hung in the school's auditorium for 50 years.  (See prior posting.) Last week, to celebrate its 50th reunion, the Class of 1963 that had presented the original mural to the school replaced it with a new one that eliminates all religious references.  According to Friday's Providence Journal, the new mural contains seven lines to guide students, in the form of an acrostic with the first letter of each line spelling "Falcons". The Class also presented a new banner containing the school creed to replace the old one that had also hung in the auditorium.

UPDATE: The Cranston Patch (9/23) reports that there has been a delay in hanging the new mural because of typos discovered in it. Also it needs to be confirmed that they comply with the fire code.

Recent Prisoner Free Exercise Cases

In Davis v. Abercrombie, 2013 U.S. Dist. LEXIS 131525 (D HI, Sept. 13, 2013), a Hawaii federal district court dismissed the governor of Hawaii as a defendant in a suit complaining that plaintiffs were unable to observe their Native Hawaiian religion at two private prisons in Arizona in which Hawaii houses inmates. The court also dismissed as to all defendants a claim under the Hawaii constitution.

In Chernetsky v. Nevada, 2013 U.S. Dist. LEXIS 132804 (D NV, Sept. 17, 2013), a Nevada federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 132806, Aug. 14, 2013) and refused to permit a Wiccan inmate to file an amended complaint asserting constitutional claims that were previously abandoned on appeal.

In Muhammad v. Jenkins, 2013 U.S. Dist. LEXIS 132913 (SD NY, Sept. 13, 2013), a New York federal district court denied qualified immunity in a suit against a parole officer who allegedly for retaliatory reasons barred a Nation of Islam parolee from attending the mosque of his choice and refused to extend his curfew so he could attend evening classes there.  Claims against the parole board chairwoman were dismissed.

In Mendez v. Amato, 2013 U.S. Dist. LEXIS 132346 (ND NY, Sept. 17, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 132909, June 18, 2013) and dismissed a general claim by a former jail inmate that involuntary protective custody inmates were precluded from practicing religion when they were isolated from general population religious services.

In Penwell v. Holtgeerts, 2013 U.S. Dist. LEXIS 133011 (WD WA, Sept. 16, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 133014, July 9, 2013), and dismissed a Christian inmate's complaint that regulations barring him from wearing his wedding rings in jail violated his free exercise and equal protection rights.

In Scott v. Ellis, 2013 U.S. Dist. LEXIS 133319 (D NJ, Sept. 18, 2013), a New Jersey federal district court dismissed an inmate's complaint that the warden ordered he not be allowed to participate in the Eid prayer.

In Walters v. Santa Clara Department of Corrections, 2013 U.S. Dist. LEXIS 134386 (ND CA, Sept. 19, 2013), a California federal district court dismissed a Muslim inmate's RLUIPA and free exercise complaints over the adequacy of his Halal diet and over a threat to end his Halal diet if he continued to trade food.

Mortgage Company Wins Preliminary Injunction In Contraceptive Coverage Challenge

In Armstrong v. Sebelius, (D CO, Sept. 17, 2013), a Colorado federal district court granted a preliminary injunction to Cherry Creek Mortgage Co. and its Evangelical Christian owners who claim their religious liberty is infringed by the Affordable Care Act contraceptive coverage mandate. Earlier this month, the 10th Circuit (full text of Sept. 5 opinion), citing its Hobby Lobby decision, reversed an earlier district court denial of a preliminary injunction and remanded the case to the district court. An unusual feature of this case is the fact that challengers only realized belatedly that their existing health insurance policy covered the contraceptives to which they object. (See prior posting.) In granting the preliminary injunction, the court said:

Here, the status quo is that Cherry Creek Mortgage has been and still is providing the coverage to which plaintiffs object. That being so, the preliminary injunction does not preserve the status quo, which is the stuff of most injunctions, but instead alters it. The answer is that the status quo would be Cherry Creek’s refusing to provide coverage for what they classify as abortifacients had they not unwittingly begun to provide the coverage and then run into an insurmountable roadblock when they directed their insurer to terminate the coverage.

Labor Department Recognizes Same-Sex Marriages Under ERISA

On Wednesday, the U.S. Department of Labor issued Technical Release No. 2013-04  providing guidance on applying the Supreme Court's Windsor decision to regulations under ERISA and the Internal Revenue Code relating to employee benefit plans. (News release.) The Technical Release provides in part:

the term "spouse" will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term "marriage" will be read to include a same-sex marriage that is legally recognized as a marriage under any state law....

The terms "spouse" and "marriage," however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals who are married under state law. The foregoing sentence applies to individuals who are in these relationships with an individual of the opposite sex or same sex.

[Thanks to Alliance Alert for the lead.]

Christian Universities Sue Challenging Contraceptive Coverage Mandate

Yet another lawsuit challenging the Affordable Care Act contraceptive coverage mandate has been filed, this time by four Christian universities-- Southern Nazarene, Oklahoma Wesleyan,  Oklahoma Baptist, and Mid-America Christian. The complaint (full text) in Southern Nazarene University v. Sebelius, (WD OK, filed 9/20/2013) contends that the final regulations (see prior posting) creating a compromise for religious non-profit organizations that object to furnishing contraceptive coverage is insufficient. The lawsuit contends that the final version of the regulations:

still conscripts the Universities into the government’s scheme, forcing them to obtain an insurer or third-party claims administrator and submit a form that specifically causes that insurer or third-party administrator to arrange payment for the objectionable drugs, so that such coverage will apply to the Universities’ own employees as a direct consequence of their employment with the Universities and of their participation in the health insurance benefits the Universities provide them.

Alliance Defending Freedom issued a press release yesterday announcing the filing of the lawsuit.

Church Denied Relief On Denial of Property Tax Exemption

In Church of the Isaiah 58 Project of Arizona, Inc. v. La Paz County, Arizona, (AZ App., Sept. 12, 2013), an Arizona state appellate court affirmed the state tax court's dismissal of a church's suit for injunctive and declaratory relief after the church was wrongly denied a property tax exemption.  The county tax assessor had claimed that the only acceptable evidence for granting an exemption was an Internal Revenue Service Letter of Determination. For a subsequent year, however, the county accepted a letter from the Arizona Department of Revenue instead. The court held that the state's anti-injunction statute bars injunctive relief because taxing authorities acted under a "semblance of authority."  Also, declaratory relief was properly denied because the church did not pay the assessed taxes before filing suit.

Cert. Petitions Filed In Two Contraceptive Coverage Mandate Cases

Scotus blog reports that on Thursday, petitions for certiorari to the U.S. Supreme Court were filed in two separate cases challenging the Affordable Care Act contraceptive coverage mandate. One petition (full text) seeks review of the Third Circuit's decision in Conestoga Wood Specialties Corp. v. Sebelius. In a 2-1 decision in the case, the majority 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. (See prior posting.) The second petition (full text) seeks review of Tenth Circuit's decision in Sebelius v. Hobby Lobby Stores, Inc.  In the case in an en banc decision, a majority held that that corporations have free exercise rights and that the contraceptive coverage mandate substantially burdens those rights without a compelling governmental interest. (See prior posting.) [Thanks to James Oleske via Religionlaw for the lead.]

Judge Reverses Magistrate,Says Child Can Be Named "Messiah"

In Newport, Tennessee yesterday, a Cocke County Chancery Court judge reversed a widely publicized decision handed down last month by a Child Support Magistrate who ruled that parents could not name their 7-month old child "Messiah". Magistrate Lu Ann 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." (See prior posting.) According to USA Today:

Chancellor Telford E. Forgety Jr. overturned Ballew's decision, ruling that the lower court acted unconstitutionally. He said the lower court violated the establishment clause of the U.S. Constitution, and added that the court's purpose was to determine the last name of the child, not his first name.

[Thanks to Scott Mange for the lead.] 

Can Navy Yard Shooter's Interest In Buddhism Shed Light On His Mental State?

In the aftermath of yesterday's mass shooting at the Washington Navy Yard, the Washington Post explores the question of whether shooter Aaron Alexis' interest in Buddhism can help in understanding Alexis' mental state:

Buddhism can seem particularly appealing to "mentally unbalanced people seeking to right the ship of their lives, to self-medicate, to curb their impulses, or to give them a firmer grip on reality," Clark Strand, a contributing editor to the Buddhist publication Tricycle magazine and a former Zen monk, said in an interview.... 

[Buddhist blogger Justin] Whitaker posed this: Are there particular issues for people who delve deeply into meditation, but disconnected from Buddhism’s history and theology?

Religious Freedom Agency Loses Attempt To Dismiss Former Employee's Discrimination Suit

In Ghori-Ahmad v. U.S. Commission on International Religious Freedom, (D DC, Sept. 17, 2013), the DC federal district court refused to dismiss claims of religious and national origin discrimination, and of retaliation, bought by a former employee of the U.S. Commission on International Religious Freedom.  Ghori-Ahmad, a lawyer and expert on South Asian affairs, is a Muslim of Indian descent who in 2009 was originally offered a full-time job with USCIRF, but then had the offer rescinded and ended up with only a 90-day position that the agency refused to extend. Her lawsuit claims that her original offer was withdrawn, and her temporary position was not extended, because of anti-Muslim bias of two of the USCIRF commissioners. (See prior posting.)  The court first rejected USCIRF's claim that as a matter of law Ghori-Ahmad was an independent contractor with the agency, not an employee covered by the anti-discrimination provisions of the Congressional Accountability Act when her position was not extended. It held that factual issues remain as to her status.  The court also rejected USCIRF's claim that no materially adverse action had been taken against Ghori-Ahmad. The court, however, did dismiss plaintiff's detrimental reliance claim, refusing to exercise supplemental jurisdiction to hear it.

Yemeni Court Imposes Sharia Punishment of Amputation; Rights Group Objects

AFP reports that for the first time in over ten years, a court in Yemen has sentenced a defendant convicted of robbery to the punishment of amputation, as prescribed by shariah law.  Earlier this week, a court in Sanaa ordered amputation of the right hand and left foot of defendant who attacked his victim and robbed him of cash he was carrying in a vehicle belonging to a money exchange firm. Amnesty International has called on Yemen to commute the sentence, saying it amounts to torture in violation of international law.

6th Circuit Rejects Closely-Held Business Challenge To Contraceptive Mandate

In Autocam Corp. v. Sebelius, (6th Cir., Sept. 17, 2013), the 6th Circuit Court of Appeals denied  a preliminary injunction in an Affordable Care Act contraceptive coverage mandate challenge.  The suit was brought by two related closely-held businesses (a corporation and an LLC) and by their Catholic owners.  The shareholder-owners describe the companies as "the business form through which [they] endeavor to live their vocation as Christians in the world." The court held, however, that the coverage mandate falls on the corporations, not their owners, so owners cannot bring a free exercise claim in their individual capacities. As to the claim by the businesses themselves, the court held that a for-profit secular corporation "is not a 'person' capable of 'religious exercise' as intended by RFRA." Christian Science Monitor reports on the decision.

Bahrain Government Sues To Dissolve Islamic Scholars' Council

GulfNews reports that yesterday Bahrain's Ministry of Justice, Islamic Affairs and Endowments filed suit to dissolve the Islamic Scholars’ Council, seeking to shut it down and liquidate its financial assets.  The government says that the Scholars' Council has refused to become a member of the new Supreme Council for Islamic Affairs and instead is operating illegally as a cover for political activity.

British Judge Says Muslim Woman Must Remove Full-Face Veil For Her Testimony, But With Accommodations

In a widely followed case in Britain, a trial court judge who allowed a Muslim woman charged with witness intimidation to keep her face fully covered by her niqab at her arraignment (see prior posting) has now ruled that she must uncover her face when giving evidence during her trial.  The Guardian reported yesterday that under a compromise arrangement, the woman will be able to testify behind a screen or by live video link where only the judge, counsel and jurors can see her face, but court spectators will not. This will allow jurors to assess her demeanor.  The court also ordered that there be no artist's sketch of the woman with her face uncovered, and ruled that the woman, who will be identified only by her initial, can keep her face covered during the rest of the trial.

Complex Settlement Reached In Maryland Church Zoning Dispute

The Gaithersburg (MD) Gazette reports that a complicated settlement has been reached in Bethel World Outreach Ministries of Montgomery County v. Montgomery County Council. The suit, currently on remand from the 4th Circuit (see prior posting), involves a zoning denial that barred a congregation from building an 800-seat church in an area zoned as an agricultural preserve.  Under the settlement, the county will pay the church $1.25 million which it will use in part to purchase an agricultural easement for the property it sought to rezone.  It will still be allowed to subdivide the land into 4 residential lots. Then it will develop property that it has located elsewhere in the county to build a 1,200-seat church.  The county will make water and sewer changes to accommodate this, and the church will consider shuttle service for overflow parking as well as the purchase of additional land for use as a school and for services.

Court Upholds Zoning Conditions Imposed On Residential Synagogue

In a decision handed down last month, a New Jersey state trial court upheld 14 challenged conditions imposed by the Teaneck Board of Adjustment on use of a house as a residential Orthodox synagogue in an area zoned for single family dwellings.  For example, the Board required that there be no outdoor celebratory activity.  In 554 Queen Anne Road, Inc. v. Teaneck Board of Adjustment, (NJ Super. Ct., Aug. 23, 2013), the court held:

Each of the conditions ... bears a rational and reasonable relationship to the foreseen consequences of granting the requested variances.

(See prior related posting.) [Thanks to Thomas Rockland for the lead.]

Islamic Center Sues Illinois City Over Zoning Change Denial

A federal court lawsuit was filed yesterday by an Islamic Center against Des Plaines, Illinois, alleging that the city and members of its city council violated the 1st and 14th Amendments and RLUIPA when they denied zoning changes so land and buildings the Center wanted to acquire could be used for religious worship and education.  The complaint (full text) in American Islamic Center v. City of Des Plaines, (D IL, filed 9/16/2013), alleges that the Islamic Center, most of whose 160 members are Bosnian Muslim refugees, obtained Plan Commission approval for its proposal for use of the now-vacant property, but that city council denied the changes by a vote of 5-3. The Daily Herald reports on the lawsuit.

TSA Says Passengers May Carry Sukkot Items Through Security Checkpoints

The Jewish holiday of Sukkot begins Wednesday night.  Last week, the Transportation Security Administration issued an advisory (full text) stating:

TSA’s screening procedures do not prohibit the carrying of the four plants used during Sukkot - a palm branch, myrtle twigs, willow twigs, and a citron - in airports, through or security checkpoints, or on airplanes. These plants or agricultural items are not on TSA’s Prohibited Items List. However, all persons and property will undergo security screening at the checkpoint.

Recent Articles of Interest

From SSRN:

• Zoe Robinson, What is a 'Religious Institution'?, (Boston College Law Review, Vol. 55, 2014, Forthcoming).
• Ethan Zadoff, Zadoff on Kwall: A Historians Critique, (Cardozo Law Review, Forthcoming).
• Jennifer Anglim Kreder, Lessons for Religious Liberty Litigation from Kentucky, (19 Wash. & Lee J. of Civ. Rts. & Soc. Justice, 2013).
• Shiva Falsafi, Religion, Women, and the Holy Grail of Legal Pluralism, (Cardozo Law Review, Forthcoming).
• Peter O'Brien, Islam and the Politics of Secularism in Europe, (APSA 2013 Annual Meeting Paper).
• Jeremy M. Christiansen, 'The Word Person...Includes Corporations': Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations, (Utah Law Review, Forthcoming).

From elsewhere:

• Patrick E. Tolan, Jr., Compromising the Safety Net: How Limiting Tax Deductions for High-Income Donors Could Undermine Charitable Organizations, 46 Suffolk U.L. Rev. 329 (2013).

Recent Prisoner Free Exercise Cases

In Washington v. Gonyea, (2d Cir., Sep. 10, 2013), the 2nd Circuit held that RLUIPA does not provide a cause of action for damages against state officials in their individual capacities because the legislation was enacted pursuant to Congress’ spending power that allows the imposition of conditions, such as individual liability, only on those actually receiving the state funds. In a second summary opinion in the case issued the same day, the court affirmed the denial of plaintiff's due process claim and reversed dismissal of his First Amendment claim of retaliation for giving a copy of a Qur'an to a prison employee.

In Lofton v. St. Clair County Jail, 2013 U.S. Dist. LEXIS 127975 (SD IL, Sept. 9, 2013), an Illinois federal district court dismissed, with leave to file an amended complaint, an inmate's allegation that his ree exercise rights were infringed when he was allowed to attend only one religious service during his two-month confinement in jail.

In Carr v. Noble, 2013 U.S. Dist. LEXIS 128163 (SD OH, Sept. 9, 2013), an Ohio federal magistrate judge permitted an inmate to proceed with his claims against certain defendants alleging denial of his requests that the Christian Separatist religion be recognized and that Christian Separatist literature be made available to inmates in the chapel library, and complaining that Christian Separatist CDs were withheld and he was not permitted to donate them to the chapel library.

In Wilson v. Wetzel, 2013 U.S. Dist. LEXIS 128423 (MD PA, Sept. 9, 2013), a Pennsylvania federal district court allowed a Hebrew Israelite inmate to proceed against two correctional officers with his complaint that the disciplinary food loaf sanction imposed on him should have been suspended for the holy fast day of Gedaliah and he should have been  provided with a Kosher food bag for that day.

In Bogard v. Perkins, 2013 U.S. Dist. LEXIS 128892 (ND MI, Sept. 9, 2013), a Mississippi federal district court held that an inmate claiming to be a member of the Nazarite religious faith has no right under the 1st Amendment or RLUIPA to wear his hear in dreadlocks in violation of the Department of Corrections grooming policy.

In Diggs v. Volpe, 2013 U.S. Dist. LEXIS 111365 (SD NY, Aug. 7, 2013), a New York federal district court dismissed a suit by a Muslim inmate who complained that he could not attend Friday Jumu'ah services while he was in disciplinary confinement.

In Cox v. Stephens, 2013 U.S. Dist. LEXIS 129513 (SD TX, Sept. 11, 2013), a Texas federal district court modified a magistrate's recommendations (2013 U.S. Dist. LEXIS 129806, July 15, 2013) and permitted a Native American inmate to proceed on various claims against a prison official who violated departmental policy by denying adequate personnel to preside over religious pipe ceremonies, and to proceed with challenges to prison grooming policies and rules regarding possession of his medicine bag.

In Coleman v. Ryan, 2013 U.S. Dist. LEXIS 129774 (D AZ, Sept. 11, 2013), an Arizona federal district court permitted an inmate to proceed with his complaint that corrections officers wrongfully confiscated his rosary.

In Frost v. South Carolina Department of Corrections, 2013 U.S. Dist. LEXIS 130278 (D SC, Sept. 12, 2013), a South Carolina federal district court adopted a magistrate's recommendations (2103 U.S. Dist. LEXIS 130487, Aug. 9, 2013) and dismissed a Muslim inmate's complaints regarding the number of Shia imams, confiscation of a Qur'an, prohibition of Muslim inmates using empty cells for daily prayers and requiring inmates to arrive at a certain time to attend the Jumu'ah service.

In Brooks v. State of Hawaii, 2013 U.S. Dist LEXIS 130635 (D AZ, Sept. 8, 2013), an Arizona federal district court dismissed without prejudice a free exercise claim by an inmate who studied both Christianity and Islam, and who was removed from a voluntary Christian-based housing unit.   However he was allowed to proceed with a retaliation claim.

In Mauwee v. Nevada Department of Corrections, 2013 U.S. Dist. LEXIS 131250 (D NV, Sept. 13, 2013), a Nevada federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 131378, June 26, 2013) and dismissed a complaint by a Native American inmate that the Department of Corrections had ended a prior policy permitting access to raw foods for preparation of a ceremonial meal during the sweat lodge ceremony.

Court Denies Preliminary Injunction In Contraceptive Coverage Mandate Case

In M.K. Chambers Co. v. Department of Health and Human Services, (ED MI, Sept. 13, 2013), a Michigan federal district court refused to grant a preliminary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate against a a closely-held machinery components company and its two Catholic owners.  The court held that plaintiffs are unlikely to succeed on the merits of their 1st Amendment, RFRA and Administrative Procedure Act arguments, saying in part:

The Court takes as true, Plaintiffs’ deeply held religious beliefs. However, courts have held that the Mandate in question applies only to the corporate entity, not to its officers or owners, and that as to the individual owners, any burden imposed on them individually by the contraception mandate is remote and too attenuated to be considered substantial for purposes of the RFRA.

The court previously denied a temporary restraining order in the case. (See prior posting.)

Pentecostal Employee Loses Retaliation Claim As 5th Circuit Applies Recent Supreme Court Precedent

As previously reported, in a decision last January a Mississippi federal district court held that Title VII of the 1964 Civil Rights Act did not require a Mississippi county to allow a female juvenile detention officer who had converted to the Pentecostal faith to wear a skirt rather than pants at work.  However the court allowed plaintiff to proceed with her claim that her dismissal was in retaliation for her filing an EEOC complaint.  Now, on appeal, the 5th Circuit in Finnie v. Lee County, Mississippi, (5th Cir., Sept. 12, 2013), dismissed the retaliation claim.  The 5th Circuit applied the U.S. Supreme Court's decision from last year in University of Texas Southwestern Medical Center v. Nassar holding that in Title VII retaliation claims, plaintiff must show but-for causation, not merely a mixed motive. (See prior posting.) The 5th Circuit held that plaintiff failed to show that she would not have been terminated for violating the uniform requirement, if she had not filed an EEOC complaint.

Court Orders Pennsylvania County Clerk To Stop Issuing Same-Sex Marriage Licenses

In Commonwealth of Pennsylvania, Department of Health v. Hanes, (Comnw. Ct., Sept. 12, 2013) a Pennsylvania Commonwealth Court judge granted a writ of mandamus ordering Montgomery County court clerk D. Bruce Hanes to comply with all the provisions of Pennsylvania's Marriage Law.  The order stops Hanes from issuing marriage licenses to and accepting marriage certificates from same-sex couples. Hanes began to issue licenses to same-sex couples in July after the U.S. Supreme Court's Windsor decision. (See prior posting.) In ordering Hanes to comply with the state's ban on same-sex marriage, the court said:

Because only the General Assembly may suspend its own statutes and because only courts have the authority to determine the constitutionality of a statute, and because all statutes are presumptively constitutional, a public official “[i]s without power or authority, even though he is of the opinion that a statute is unconstitutional, to implement his opinion in such a manner as to effectively abrogate or suspend such statute which is presumptively constitutional until declared otherwise by the Judiciary.”... Based on the foregoing, it is clear that Hanes does not have standing to assert the purported unconstitutionality of the Marriage Law as a defense to the instant Petition.

The Pittsburgh Post-Gazette reports on the decision.

British Judge Allows Niquab At Arraignment Under Compromise Arrangement

The Guardian reports that in Britain yesterday, a London trial court judge allowed a Muslim woman to plead not guilty in a witness intimidation case while wearing a niqab that covered her face. The judge backed off of his August order requiring her to uncover her face in court, instead accepting a compromise under which a female police officer who saw the defendant's face when her custody photograph was taken now viewed her in a private room with her veil removed. The officer then testified under oath that the correct person was in court. The judge also heard arguments on whether the woman should also be allowed to wear the niqab during her full jury trial.

8th Circuit: Pride Festival's Limits On Bible Distributions Outside Festival Booths Are Invalid

In Johnson v. Minneapolis Park and Recreation Board, (8th Cir., Sept. 11, 2013), the U.S. 8th circuit Court of Appeals, in a 2-1 decision, held that the district court should have granted a preliminary injunction to allow an Evangelical Christian to distribute Bibles at the Twin Cities Pride Festival in a downtown Minneapolis park.  The majority concluded that a regulation which limits distribution of literature to those with booths at the Festival or elsewhere in the park (or else through a materials drop area) was not narrowly tailored to further a significant governmental interest in safety or in preventing congestion, particularly since Festival sponsors were allowed to solicit contributions outside booths and near entrances to the Festival. Judge Bye dissented, arguing that "the Board's regulation was a content-neutral time, place, and manner restriction and was narrowly tailored to serve a significant government interest which also provided ample alternative channels of communication." [Thanks to Blog From the Capital for the lead.]

Anti-Muslim Pastor Arrested On Way To Planned 9-11 Qur'an Burning

Law enforcement officials in Mulberry, Florida yesterday arrested controversial Florida pastor Terry Jones and his associate Pastor Marvin Sapp as they were driving to a park to burn 2,998 Qur'ans-- one for each victim of the 9-11 terrorist attacks. AP reports that the two men were carrying the Muslim holy books, soaked in kerosene, in a barbecue-style grill in a pickup truck. They were each charged with unlawful conveyance of fuel. In addition Sapp was charged with having no valid registration for his trailer, while Jones was charged with unlawful open carry of a firearm. (See prior related posting.)

Catholic and Evangelical Law Professors Publish Joint Statement On Theological Foundations of Civil Law

A group of 15 Evangelical and 14 Catholic law professors have just published a paper that has been 8 years in the making titled Evangelicals and Catholics Together On the Law: The Lord of Heaven and Earth. (Full text in Summer 2013 Journal of Christian Legal Thought). Heavy on theology, the 9-page joint statement begins with this explanation of purpose:

... we wish to speak from and to our respective communities about law, politics, and government. We speak from the conviction that law's place and role in society are shaped by enduring truths - truths that transcend the differences among cultures and traditions - about God, about the world, about the human person, and about what the entire human family is called by its divine creator and redeemer to be.

[Thanks to Rick Garnett for the lead.]

Suit Challenges Elementary School Graduation In Chapel With Christian Prayers

The American Humanist Association announced yesterday that it has filed a federal lawsuit against the Greenville County, South Carolina school district challenging on Establishment Clause grounds its practice of holding graduation for a Taylors, South Carolina elementary school in the chapel of North Greenville University. The University  describes itself as offering "a quality education in a biblically sound, Christ-centered environment." The complaint (full text) in American Humanist Association v. Greenville County School District, (D SC, filed 9/11/2013), claims that the graduation ceremony in the chapel also included two student-led Christian prayers that had been reviewed and approved by school staff.

Questionable Voter Campaign Aimed At New York City's Orthodox Jewish Williamsburg Residents

The Gothamist on Tuesday reported on a questionable get-out-the-vote campaign in New York City's Orthodox Jewish enclave of Williamsburg that includes a promise to enter those who vote into a raffle for $250 cash prizes and gift certificates.  Not far from polling locations, workers staff a table featuring signs mostly in Yiddish backing a favored slate of candidates. Apparently families of area yeshiva students were mailed cards entitling them to be entered in the raffle if they return the cards to these workers after they vote. Cards were also available from a van near polling stations. NY Election Law § 17-142 prohibits offering money or other valuable consideration to anyone to induce them to vote or refrain from voting. The nonprofit United Jewish Organizations denies claims that it was behind the voter campaign. [Thanks to Steven H. Sholk for the lead.]

Mormon Church Creates New Online Resources To Promote Religious Freedom

Earlier this week, the Church of Jesus Christ of Latter Day Saints announced that it has launched new online resources to help individuals understand the importance of freedom of religion. A Topic Page contains essays and videos on basic concepts, as well as links to additional resources.  A "Support Religious Freedom" Facebook page has also been created.

Relying On Hobby Lobby Case, Court Enjoins ACA Mandate's Application To 4 Contraceptive Methods

In Briscoe v. Sebelius, (D CO, Sept. 6, 2013), a Colorado federal district court granted a preliminary injunction to a for-profit corporation, two related for-profit LLCs and their evangelical Christian owner who have religious objections to contraceptive methods they believe operate as abortifacients.  The companies manage and operate senior care assisted living centers and skilled nursing facilities, and offer a self-insurance plan to their over 200 employees.  The court's preliminary injunction bars enforcing the Affordable Care Act's preventative care mandate against plaintiffs with respect to four FDA approved contraceptive methods: (1)Ella; (2) Plan B, Plan B One-Step, and Next Choice (Levonorgestrel); (3) the Copper IUD; and, (4) the IUD with Progestin. Last February, the court refused to grant a temporary restraining order in the case. (See prior posting.)  However, subsequently the 10th Circuit, en banc, decided the Hobby Lobby case, holding that corporations have free exercise rights, and that the contraceptive coverage mandate substantially burdened those rights without a compelling governmental interest. (See prior posting.) Relying on this holding, the district court here granted the relief sought. Live Action News reports on the decision.

On Anniversary of 9-11, Considering Bush 43's View of Radical Islam

Today is the 12th anniversary of the 9-11 attacks.  The events of Sept. 11, 2001 have caused some to question whether our traditional church-state and free exercise doctrines are adequate to deal with violence carried out in the name of radical Islam.  In considering that important issue, it is useful to look back at portions of the speech (full text) President George W. Bush delivered to the nation and a joint session of Congress nine days after the attacks.  Here are his conclusions:

The terrorists practice a fringe form of Islamic extremism that has been rejected by Muslim scholars and the vast majority of Muslim clerics -- a fringe movement that perverts the peaceful teachings of Islam. The terrorists' directive commands them to kill Christians and Jews, to kill all Americans, and make no distinction among military and civilians, including women and children....

I also want to speak tonight directly to Muslims throughout the world. We respect your faith. It's practiced freely by many millions of Americans, and by millions more in countries that America counts as friends. Its teachings are good and peaceful, and those who commit evil in the name of Allah blaspheme the name of Allah. (Applause.) The terrorists are traitors to their own faith, trying, in effect, to hijack Islam itself. The enemy of America is not our many Muslim friends; it is not our many Arab friends. Our enemy is a radical network of terrorists, and every government that supports them. (Applause.)...

The course of this conflict is not known, yet its outcome is certain. Freedom and fear, justice and cruelty, have always been at war, and we know that God is not neutral between them. (Applause.)

Court Rejects Challenge To "In God We Trust" On Currency

In Newdow v. United States, (SD NY, Sept. 9, 2013), a New York federal district court rejected Establishment Clause and free exercise challenges by atheists and secular humanists to the government's placing of the words "In God We Trust" on U.S. currency. The court held that "the inclusion of the motto on U.S. currency satisfies the purpose and effect tests enunciated in Lemon, and does not violate the Establishment Clause." In rejecting challenges under the free exercise clause and RFRA, the court concluded:

While Plaintiffs may be inconvenienced or offended by the appearance of the motto on currency, these burdens are a far cry from the coercion, penalty, or denial of benefits required under the "substantial burden" standard.

(See prior related posting.)

4 Bloggers Indicted In Bangladesh For Postings That Hurt Religious Sentiments

In Bangladesh on Sunday, four bloggers who had been arrested in April and subsequently released on bail were indicted under Sec. 57 of the Information and Communications Technology Act for inflammatory postings on sensitive religious issues hurting religious sentiments. These are the first defendants to be indicted under the Act since it was amended earlier this year to increase penalties to imprisonment for 7 to 14 years. BDNews 24 and Pakistan's Daily Times report on developments. The Times explains the background:

There has been vociferous debate between staunch atheists and fundamentalists in Bangladesh’s social media for years, but it took a deadly turn in February when an anti-Islam blogger was murdered.

That came amid massive rallies in the capital in which secular groups demanded the hanging of leading Islamists accused of war crimes during the 1971 war.

Religious groups have since staged nationwide demonstrations, with their demands including the prosecution – and execution – of atheist bloggers.

Ministerial Exception Defense Rejected In Suit By Transgender Catholic School Teacher

WABC News reports that a New York state trial court judge yesterday rejected a ministerial exception defense raised by St. Francis Catholic high school in Queens in a suit by a former teacher who claims to have been fired because she announced that she is transgendered.  Marla Krolikowskii, formerly known as Mark, had taught at the school for 32 years when she was fired in October 2012. The court rejected the argument that Krolikowsii is a "minister."  The school claims that Krolikowskii was fired for insubordination.

Scalia Speaks On Christianity and Capitalism

Supreme Court Justice Antonin Scalia spoke Friday at the Lanier Theological Library in Houston, Texas, discussing the relationship between Christianity and capitalism.  According to the Huffington Post, Scalia argued:

[I]n order for capitalism to work -- in order for it to produce a good and a stable society -- the traditional Christian virtues are essential.....

Speaking on the expanding governmental involvement in charity, he said:

The governmentalization of charity affects not just the donor but also the recipient. What was once asked as a favor is now demanded as an entitlement.  The transformation of charity into legal entitlement has produced donors without love and recipients without gratitude.

French Schools Will Post New Secularism Charter

France's Education Minister yesterday unveiled a new Secularism Charter designed to keep religion out of French schools. According to The Local, a poster setting out the 15-point Charter of secular, Republican principles is to be posted prominently in every school.  An example of an item in the Charter is:

Lessons are secular...No subject is a priori excluded from scientific and pedagogic questioning. No student can invoke their political or religious convictions, in order to dispute a teacher's right to address a question on the syllabus.

Muslim Woman Wins Title VII Challenge To Abercrombie's "Look Policy"

In EEOC v. Abercrombie & Fitch Stores, Inc, (ND CA, Sept. 3, 2013), a California federal district court granted partial summary judgment in a Title VII case to a Muslim woman, Umme-Hani Khan, who was terminated from her employment with Abercrombie & Fitch when she insisted on wearing her headscarf (hijab) for religious reasons.  The company insisted that Khan comply with its "Look Policy." The court rejected Abercrombie's claim that accommodation of Khan's religious beliefs would impose an undue hardship.  It also rejected Abercrombie's argument that its Look Policy was protected by the 1st Amendment's commercial speech doctrine because store associates were in effect living advertisements. CAIR issued a press release announcing the decision.

Group Urges SEC To Expand Accredited Investor Rule To Cover Same-Sex Couples

The U.S. Supreme Court's Windsor decision striking down Section 3 of the Defense of Marriage Act is rippling through unexpected corners of federal regulation.  A group of investors and entrepreneurs calling themselves StartupEquality.org last week sent a letter (full text) to the Securities and Exchange Commission urging the expansion of SEC's Regulation D that allows businesses to raise capital from wealthy investors in private placements without filing a full registration statement. SEC Rule 501 defines "accredited investors"-- those who may purchase in private placements-- as including spouses who jointly meet certain income or net worth levels.  The group's letter says that the Windsor decision should be read to automatically extend Rule 501 to same-sex married couples, and urges the SEC to expand the rule so that same-sex couples in civil unions, domestic partnership arrangements and the like who are unable to marry may also aggregate their income and assets to determine accredited investor status.

Presidential Proclamation Declared Last Weekend Days of Prayer and Remembrance For 9-11 Victims

Last Friday President Obama issued a Presidential Proclamation (full text) declaring Friday, September 6 through Sunday, September 8, 2013, as National Days of Prayer and Remembrance to remember the victims of 9-11.  The Proclamation calls on the people of the United States, and others around the world, to honor and remember the victims and their families through prayer, contemplation, memorial services, the visiting of memorials, the ringing of bells, evening candlelight remembrance vigils, and other appropriate ceremonies and activities.

Federal Lawsuit Challenges Noise From Church Bells

The Providence Journal reported last week on a pro se federal lawsuit filed by a Narragansett, Rhode Island man, John Devaney, who objects to the noise from the bells of St. Thomas More Catholic Parish directly across from his home, as well as those of an Episcopal Church nearby. Naming Attorney General Peter F. Kilmartin, Diocese of Providence Bishop Thomas J. Tobin, Archbishop Carlo Maria Vigano, apostolic nuncio to the United States, and Pope Francis as defendants, as well as the administrator of the Epsicopal church, the suit claims that the bells deny Devaney his constitutional rights and the peaceful enjoyment of his property.  Claiming that there are 700 amplified claps and gongs each week, the suit seeks to require the town to apply its noise ordinances to churches and to require the St. Thomas More to reduce the number and volume of its chimes.  The Catholic parish's bells ring for one minute 3 times a day on weekdays, twice on Saturdays and once on Sundays. The diocese claims that Devaney is harassing visitors, worshipers and staff of the parish.

Southern Baptist Convention Bars Its Military Chaplains From Participating In Same-Sex Weddings

The North American Mission Board on Aug. 29 released new Guidelines (full text) clarifying the expectations for all military and VA chaplains endorsed by the Southern Baptist Convention in light of the Supreme Court's invalidation of the Defense of Marriage Act. The new Guidelines provide in part:

All ministries regarding human sexuality will reflect the historic, natural and biblical view of marriage as God's lifelong gift of "the uniting of one man and one woman in covenant commitment for a lifetime."...

Southern Baptists believe that "all forms of  sexual immorality, including adultery, homosexuality and pornography" ... are condemned by Holy Scripture as sin.... Responsible pastoral care will seek to offer repentance and forgiveness, help and healing, and restoration through the mercy and grace of Jesus Christ;s sacrificial gift of love on the cross.

NAMB-endorsed chaplains will not conduct or attend a wedding ceremony for any same-sex couple, bless such a union or perform counseling in support of such a union, assist or support paid contractors or volunteers leading same-sex relational events, nor offer any kind of relationship training or retreat, on or off of a military installation, that would give the appearance of accepting the homosexual lifestyle or sexual wrongdoing. This biblical prohibition remains in effect irrespective of any civil law authorizing same-sex marriage or benefits to the contrary....

[NAMB-endorsed chaplains may not conduct] a service jointly with a chaplain, contractor or volunteer who personally practices a homosexual lifestyle or affirms a homosexual lifestyle or such conduct.

AP reports on the new Guidelines.

Recent Articles and Books of Interest

From SSRN:

• Cyra Akila Choudhury, Governance Feminism's Imperial Misadventure: Progress, International Law, and the Security of Afghan Women, (in 'Contestory Feminisms, Contestory Spaces: Gender and Islam in Asia' (H. A. Ghosh, ed., Syracuse University Press), Forthcoming).
• Cyra Akila Choudhury, Law, Gender and the Burden of Culture, (September 3, 2013).
• William E. Thro, Undermining Christian Legal Society v. Martinez, (Education Law Reporter, 2013, Forthcoming).
• James G. Dwyer, No Accounting for School Vouchers, (Wake Forest Law Review, Vol. 48, 2013).
• Ian C. Bartrum, Book Review: 'The Tragedy of Religious Freedom', (Journal of Church and State, Vol. 55, 2013).
• Mohamed Abdelaal, Egypt's Constitution: What Went Wrong?, (Vienna Journal on International Constitutional Law, Vol. 7, No. 2, p. 200, 2013).

From SmartCILP:

• Symposium: Law, Religion, and Lautsi v. Italy. Introduction by Malick W. Ghachem; essays by Joseph H.H. Weiler and Pierre-Henri Prelot; response by William P. Marshall. 65 Maine Law Review 755-788 (2013).

New Books:

• Matt Apuzzo & Adam Goldman, Enemies Within: Inside the NYPD's Secret Spying Unit and Bin Laden's Final Plot against America, (Touchstone, Sept. 3, 2013), reviewed by Rolling Stone.
• Thomas E. Buckley, Establishing Religious Freedom: Jefferson's Statute in Virginia, (University of Virginia Press, Dec. 2013).
• Richard Regan, The American Constitution and Religion, (Catholic University of America Press, Nov. 2013).

Cert. Petition Filed In Obamacare Case

Last Thursday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Liberty University v. Lew.  In the case, the 4th Circuit, upheld the constitutionality of the Affordable Care Act's employer mandate and rejected free exercise, RFRA, Establishment Clause and equal protection challenges to other provisions of the Act. Liberty Counsel issued a press release announcing the filing of the petition.

German Police Raid Christian Sect; Take Children Into Foster Care

AP reports that police in southern Germany on Friday raided two locations of the so-called "Twelve Tribes", a Christian religious sect, and took 40 children for placement into foster care for fear that they are being abused. The children ranged in age from 1 to 17.  Police seized sticks allegedly used to hit the children. Sect members acknowledge that they believe in spanking children, but denied any wrongdoing.  An investigation has been opened by police into the sect that was founded by a Tennessee high school teacher in the 1970's, and which has had run-ins with authorities in the United States in the past as well.  The group has also had problems with German authorities in the past for violating laws barring homeschooling of their children. The Blaze has a longer report on the raid.

Texas AG Says City's Ban On Officials Demonstrating Bias By Word or Deed is Unconstitutional

On Thursday, the San Antonio, Texas city council adopted, by a vote of 8-3 an ordinance (full text) expanding its non-discrimination bans to include discrimination on the basis of sexual orientation, gender identity and veteran status. It provides, however, that nothing in the ordinance "shall be construed as requiring any person or organization to support or advocate any particular lifestyle or religious view, or advance any particular message or idea." One of the most controversial portions of the new law is the provision that:

No appointed official or member of a board or commission shall engage in discrimination or demonstrate a bias, by word or deed, against any person, group of persons, or organization on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age or disability, while acting in their official capacity while in such public position.

The Texas Tribune reported Friday that state attorney general Greg Abbott takes the position that this ban violates the free speech and free exercise provisions of the Texas and U.S. constitutions and opens the city to possible lawsuits. He says that the provision could expose officials to removal from office for speaking in favor of Texas' constitutional ban on same-sex marriage.

Recent Prisoner Free Exercise Cases

In Washington v. Afify, 2013 U.S. Dist. LEXIS 125523 (WD NY, Sept. 3, 2013), a New York federal district court dismissed claims by a Muslim inmate that his free exercise rights were infringed by assignment of a cell mate who exposed him to pornographic images and sexually explicit TV and music; that he was denied "religious" meals during Ramadan unless he agreed to work in the mess hall; and that he was not allowed to attend religious services because of misbehavior reports.

In McCallon v. Lasalle Management Co., 2013 U.S. Dist. LEXIS 125768 (WD LA, Sept. 3, 2013), a Louisiana federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 125765, Aug. 5, 2013) and dismissed a Muslim inmate's complaints regarding the method of appointing an imam, limitations on participation in Jum'ah services, an improper Ramadan diet and no Eid feast.

In Price v. White, 2013 U.S. Dist. LEXIS 125946 (WD KY, Sept. 3, 2013), a Kentucky federal district court allowed a Jewish inmate to proceed with his claim that his free exercise and RLUIPA rights were violated when he was forced to shave his head while in segregation, in violation of his religious beliefs.

In Watts v. Byars, 2013 U.S. Dist. LEXIS 126148 (D SC, Sept. 3, 2013), a South Carolina federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 125997, June 10, 2013) and rejected a Muslim inmate's complaint that he was served a vegetarian rather than a Halal menu.

In Martz v. Sci-Coal Township Therapeutic Community, 2013 U.S. Dist. LEXIS 125884 (MD PA, Sept. 4, 2013), a Pennsylvania federal district court allowed an inmate to proceed on his claim that he was denied parole on his earliest release date for failure to attend a drug and alcohol program whose secular option to the religious/spiritual segment existed only on paper and not in reality.

In Patel v. Brewton, 2013 U.S. Dist. LEXIS 126242 (SD GA, Sept. 4, 2013), a Georgia federal magistrate judge recommended that an inmate be permitted to proceed on his complaint that defendant improperly ended his religious meals.

In Taylor v. Hubbard, 2013 U.S. Dist. LEXIS 126311 (ED CA, Sept. 4, 2013), a California federal magistrate judge recommended allowing an inmate who practiced Thelema to proceed with claims that some of his religious items were confiscated. Other claims were dismissed for failure to exhaust administrative remedies.

In Tatum v. Clarke, 2013 U.S. Dist. LEXIS 126821 (ED WI, Sept. 5, 2013), a Wisconsin federal district court rejected an inmate's claim that while in jail he was subjected to a year-long retaliatory conspiracy based on his religion. However he was permitted to proceed with certain other religion claims.

In Allen v. Mikarimi, 2013 U.S. Dist. LEXIS 126996 (ND CA, Sept. 5, 2013), a California federal district court dismissed certain defendants and permitted a Muslim inmate to proceed against others on his complaint that Muslims were denied group worship services, while other religious groups were allowed them.

In Ricks v. Albitre, 2013 U.S. Dist. LEXIS 127662 (ED CA, Sep. 5, 2013), a California federal magistrate judge held that an inmate could proceed against certain of the defendants on the claim that they substantially burdened the practice of his religion by failing to provide Wiccan services and failing to purchase Wiccan materials and artifacts.

Appeals Court Upholds Rejection of Noncomplying Articles of Incorporation For Corporation Sole

In Roman Catholic Bishop of San Jose v. Bowen, (CA App., Sept. 5, 2013), a California state appellate court upheld a decision by the Secretary of State to refuse to file the articles of incorporation for "Pastor of Santee Catholic Mission, a corporation sole," because the dissolution provision in the articles does not comply with the requirement of California law that in case of dissolution any remaining assets be distributed to the religious organization governed by the corporation sole. (Corp. Code Sec. 10015).  The articles submitted called for assets on dissolution to go to the Roman Catholic Bishop of San Jose instead of to the Santee Catholic Mission Parish. The Church had argued that the dissolution provisions in the articles were designed to assure that assets remain with the Catholic community if the parish is suppressed.

Westboro Baptist Church Claims Discriminatory Enforcement of Nebraska Funeral Picketing Law

ABP reports that Shirley Phelps-Roper, a member of Westboro Baptist Church, last week filed an amended complaint in her "as applied" challenge to Nebraska's funeral picketing law.  The complaint alleges discriminatory enforcement of the law against Westboro, known particularly for its anti-gay picketing of military funerals.  It cites at least 16 instances of strict enforcement against Westboro picketers, keeping them blocks away, and says that counter-protesters such as motorcycle riders and other citizens are permitted to gather closer to funeral services. It also claims that local officials have taken legal action against Westboro picketers because of disagreement with their viewpoint. The case was remanded to the district court last April in an 8th Circuit decision in Phelps-Roper v. Troutman, following the 8th Circuit's en banc decision upholding Missouri's funeral picketing law.

Georgia State AG Says Public Utilities Commission Cannot Direct Fine Money To Care Net Pregnancy Centers

The Atlanta Journal Constitution reported Thursday that the Georgia's Attorney General, Sam Olens, has advised the Georgia Public Utilities Commission that it lacks authority to approve a proposal by two GPUC members that would have diverted a $10,000 fine imposed on a telephone company to Care Net, a religious pregnancy counseling charity with ties to the two commissioners who back the plan.  While the Public Utilities Commission can enter settlement with companies under which they agree to alternatives to a fine, it is required that there be a connection between the proposed use of funds and the violation.  So customer refunds, or training to prevent natural gas accidents would be permissible. But here the connection is not clear.  Commissioner H. Doug Everett who proposed the plan (and whose wife works as an unpaid Care Net volunteer) says there is a connection. One of the violations for which Peerless Network of Georgia was cited was a failure to ensure the confidentiality of family violence shelters. Commissioner Tim Echols, a Care Net advisory board volunteer who received consulting fees from the parent organization in 2006, supports Everett's plan, with the condition that if it does not pass, the settlement would direct the $10,000 to charitable medical clinics for expanded broadband access.

Suit By Jewish Nursing Student Seeking Excused Absences On Holidays Is Settled

On Wednesday, just before that start of the Jewish holiday of Rosh Hashanah, Dallas County (TX) Community College District announced a settlement in a case that had been filed the day before by an Orthodox Jewish student in the school's nursing program who sought accommodation of his religious beliefs.  As reported by the Dallas Observer, the school threatened to drop student Hillel Rodin from the program because he would be missing a mandatory orientation on Thursday (Rosh Hashanah) as well as four additional days of clinical observation scheduled for other Jewish holidays.  In settling the case, the parties agreed that Rodin would make up his clinical requirements on appropriate dates in January 2014.  Originally the school insisted that Rodin seek a dispensation from his rabbi allowing him to attend class on the holidays and make clinical rounds on those days, merely postponing writing his observations and diagnoses until after the holiday ended.

Massachusetts High Court Hears State Constitutional Challenge To Pledge

On Sept. 4, the Massachusetts Supreme Judicial court heard oral arguments (video of full arguments) in Doe v. Acton-Boxborough Regional School District. The suit was brought by an atheist-humanist family challenging the constitutionality of the daily recitation of the Pledge of Allegiance in Massachusetts schools. (No student who objects is required to recite the pledge.) The trial court rejected a challenge under the Massachusetts state constitution to the practice, holding that insertion of the phrase "under God" was merely a reference to historical and religious traditions. (See prior posting.)  RNS describes the 35 minute oral argument.

Another Small Business Challenge To Contraceptive Coverage Mandate Filed

This week a suit was filed by another for-profit family-owned business, along with its two controlling officers, challenging the Affordable Care Act contraceptive coverage mandate under the 1st Amendment, the Religious Freedom Restoration Act and the Administrative Procedure Act. The complaint (full text) in Barron Industries, Inc. v. Sebelius, (D DC, filed 9/4/2013) involves a Michigan-based metal products company with 56 full-time employees.  The complaint alleges in part:

  Plaintiffs operate by their business practices, pursuant to their guiding principle— which is their faith in God—and receive grace and guidance from God in all their business practices, including Plaintiffs’ selection of health insurance....

Based on the teachings of the Catholic Church, and their deeply held religious beliefs, Plaintiffs do not believe that contraception, sterilization, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well being of persons. Indeed, Plaintiffs believe these procedures involve gravely immoral practices, specifically the intentional destruction of innocent human life. Therefore, Plaintiffs seek to exclude this objectionable coverage from their health insurance plan.

The Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Nidal Hasan's Beard Finally Shaved Forcibly By Army

AP reports today that Major Nidal Hasan who was convicted and sentenced to death for killing 13 and wounding 30 in a 2009 shooting rampage at Fort Hood has had his beard forcibly shaved in the military detention barracks at Fort Leavenworth where he is on death row.  After extensive litigation, Hasan, a Muslim, was allowed to keep the beard he had grown for religious reasons during his trial. (See prior posting.)  Fort Leavenworth officials previously said that Hasan would be subject to military grooming regulations there. [Thanks to Scott Mange for the lead.]

Obama In Stockholm Honors Raoul Wallenberg; Sends Rosh Hashanah Greetings

President Obama, who is in Sweden today, visited the Great Synagogue in Stockholm to honor Swedish diplomat Raoul Wallenberg who shielded thousands of Jews from the death camps in World War II.  In his remarks (full text), Obama said in part:

This evening is the first night of the Jewish High Holidays -- Rosh Hashanah.  For our Jewish friends, it’s a time of joy and celebration, to give thanks for our blessings, and to look ahead to the coming year.  So to all our Jewish friends here in Sweden, in the United States, and around the world, especially in Israel -- I want to wish you and your families a sweet and happy new year.  Shanah Tova. 

Vermont Federal Court Has General Jurisdiction Over New York Diocese In Abuse Case

In Shovah v. Mercure, (D VT, Sept. 3, 2013), a Vermont federal district court held that the Diocese of Albany, New York has sufficient contacts with Vermont, primarily through priests who have conducted worship services there, to create general jurisdiction over the diocese in Vermont.  The holding comes in a suit in which plaintiff, a victim of priest sexual abuse, alleges that the Diocese breached its fiduciary duty to by permitting the alleged abuser, former priest Gary Mercure, to hold himself out as a Catholic Priest and that it negligently supervised Mercure.

PETA Becomes Advocate For Buddhist Prisoner Seeing Vegetarian Diet

As those who follow Religion Clause's weekly summary of prisoner free exercise cases know, law suits over religious dietary accommodation arise in federal courts virtually every week. AP reported yesterday on a new organizational advocate that has dipped its toe into the fray.  Buddhist inmate Howard Cosby has been attempting to get a vegetarian diet for religious reasons at his Connecticut prison.  Prison officials insist on including fish three times per week in his meals.  So Cosby has enlisted the held of the animal rights group, People for the Ethical Treatment of Animals (PETA).  As PETA explains in its release on the situation:

This week, PETA wrote to the prison in Cosby's behalf, pointing out that a) fish are not vegetables, as most of us learned in high school biology class, and that b) there is ample legal precedent for granting prisoners the right to vegan and vegetarian meals under the Religious Land Use and Institutionalized Persons Act.... 

Gallup, NM Catholic Diocese To File Chapter 11 Bankruptcy

The St. Louis Post-Dispatch reports that the Catholic Diocese of Gallup, New Mexico plans to file in federal bankruptcy court for Chapter 11 reorganization.  In an August 29 announcement, the Diocese said that the decision was impelled by the increasing number of claims by clergy sex-abuse victims. Bishop James S. Wall explained:

It is very important to me that everyone understands that I have not taken this step to avoid responsibility for what happened or to hide anything. On the contrary, I firmly believe that Chapter 11 is the most merciful and equitable way for the Diocese to address its responsibility, to continue to meet its commitment to institute programs and prevent abuse, and to continue its mission to all those who depend on the outreach of the Church....

The Gallup diocese will be the ninth U.S. Catholic diocese or archdiocese to seek Chapter 11 protection.

President Will Appoint James Zogby To USCIRF

Last week, President Obama announced his intent to appoint Dr. James J. Zogby, President of the Arab American Institute, as a member of the U.S. Commission on International Religious Freedom. Yesterday USCIRF issued a press release welcoming Zogby to the Commission.

Christian Group Wins Challenge To Dearborn's Special Event Permit Ordinance

In Stand Up America Now v. City of Dearborn, (ED MI, Aug. 30, 2013), a Michigan federal district court held unconstitutional Dearborn ordinances requiring applicants for a special event permit to sign an indemnification agreement, with terms established in the unfettered discretion of the the city's legal department.  The case was brought by Stand Up America Now, an organization founded by Florida pastors Terry Jones and Wayne Sapp. The organization's purpose is "to proclaim the Holy Bible to Muslims and to educate people about the threat of Sharia law to our Nation’s fundamental principles of freedom by traveling around the country speaking about Christianity at Muslim events and mosques." The Thomas More Law Center issued a press release announcing the decision. (See prior related posting.)

Canadian Court Dismisses Religious Discrimination Challenge To Royal Succession Rules

Earlier this year, Canada's Parliament passed the Succession to the Throne Act, 2013, which gives assent to the amendments now passed by the British Parliament that eliminate preferences for male heirs in succession to the throne, and eliminates the ban on a monarch being married to a Catholic.  However the British initiative retains the ban on a Catholic actually becoming king or queen of England. In Tesky v. Canada (Attorney General), (Ont. Super. Ct., Aug. 9, 2013), an Ontario trial court dismissed a suit brought by a Catholic recent law graduate contending that Canada's Charter of Rights and Freedoms precludes Canada from consenting to legislation that discriminates on the basis of religion. The court held that the rules of succession cannot be challenged under the Charter of Rights and Freedoms because the succession rules themselves are in effect part of the Constitution.  It also concluded that plaintiff lacks standing to challenge the rules:

[Plaintiff] ... is a member of the Catholic faith but that appears to be his only interest in the issues raised in this application. He has no connection to the Royal Family. He raises a purely hypothetical issue which may never occur, namely a Roman Catholic Canadian in line for succession to the throne being passed over because of his or her religion. Should this ever occur a proper factual matrix would be available to the court to deal with a matter of this importance.

Yesterday's Law Times reported on the decision.

Suit Challenges South Carolina's Refusal To Recognize Same-Sex Marriages

Last week, a suit was filed in a South Carolina federal district court challenging the state's refusal to allow same-sex marriages and its refusal to recognize same-sex marriages legally performed in other states.  The complaint (full text) in Bradacs v. Haley, (D SC, filed 8/28/2013), contends that South Carolina's statutory law (SC Code 20-1-15) and its constitutional provision barring recognition of plaintiffs' marriage (Art. XVII, Sec. 15) violate the due process, equal protection and full faith and credit clauses of the Constitution.  The State reports on the lawsuit that was filed by Highway Patrol Trooper Katherine Bradacs and her spouse, Tracie Goodwin, who were married in the District of Columbia last year.

Times Focuses On Justice Kennedy's Role In Gay Rights Legal Victories

Today's New York Times carries a front-page story titled Surprising Friend of Gay Rights in a High Place, tracing Justice Anthony Kennedy's important role in legal victories for the gay rights movement. It says in part:

Justice Kennedy has emerged as the most important judicial champion of gay rights in the nation’s history, having written three landmark opinions on the subject, including this summer’s Windsor decision, which overturned a ban on federal benefits for married same-sex couples. Those rulings collectively represent a new chapter in the nation’s civil rights law, and they have cemented his legacy as a hero to the gay rights movement.