Suit By Anti-Catholic Group Challenges IRS Revocation of Its Non-Profit Status

The Dr. R. C. Samanta Roy Institute of Science and Technology, Inc. (SIST) has received some public notice in recent months as the attorney for its affiliates in bankruptcy proceedings was disciplined by the Minnesota Supreme Court for making repeated anti-Catholic slurs aimed at a federal bankruptcy judge and several bankruptcy trustees. (See prior posting.) Last year, the Southern Poverty Law Center profiled SIST, calling the Wisconsin-based organization "a mysterious, Catholic-bashing group" that plans to use profits from an amusement park to build a school in Wisconsin and fund another school in India. In Internal Revenue Bulletin 2013-49, (Dec. 2, 2013), the Internal Revenue Service recently announced that SIST has filed a declaratory judgment action challenging the revocation of its non-profit status under the Internal Revenue Code. The filing of the action allows individual contributors to continue to make tax-deductible contributions in limited amounts while the litigation is pending.

LA Times Carries Long Investigative Report On Handling Of Priest Sex Abuse By Archdiocese

Today's Los Angeles Times carries a very long investigative report on how the Archdiocese of Los Angeles, under the leadership of Archbishop Roger Mahony from 1985- 2011, handled revelations of sex abuse by priests. The article gives special attention to the handling of charges against now-defrocked Father Michael Baker. Here is an excerpt from the Times report:

Mahony and his aides insisted on secrecy even when lives were at risk. In one case, the archdiocese was informed that a man dying of AIDS had been having sex with a parish priest, who in turn was abusing high school students.... Yet church officials did nothing to alert the priest or the students.... 

Mahony's schedule brought him in regular contact with the police chief and the district attorney, but he never mentioned the accused abusers in his ranks or reported them to law enforcement. In private memos, he discussed with aides how to stymie police.

Mahony and his aides selected therapists who they knew wouldn't report abuse to authorities, and urged suspected molesters to remain out of state to avoid police investigations and lawsuits..... 

LAPD policy was to notify the archdiocese when an investigation was underway. But once the church was informed,[Detective Dale] Barraclough said, "we knew that the suspect, 99% sure, that he was going to be out of the country or out of state."...

From early in his time as archbishop, Mahony did more than his predecessors to address sexual abuse by priests. For the most part, he didn't ignore allegations or shuffle untreated molesters from parish to parish. He insisted on inpatient therapy and placed returning priests in jobs where they had little access to children....  But he drew the line at steps that would acknowledge abuse cases publicly.

 (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Young v. Owens, 2013 U.S. Dist. LEXIS 165751 (SD GA, Nov. 20, 2013), a Georgia federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 166587, Sept. 3, 2013) and, while dismissing RLUIPA damage claims, allowed an inmate to proceed with the remainder of his complaint that his rights were violated by rule changes as to what sacred objects are permitted in a prison setting, a package program and restrictions on holiday observance and worship time.

In Darrough v. Allen, 2013 U.S. Dist. LEXIS 166741 (MD GA, Nov. 25, 2013), a Georgia federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 167166, Oct. 17, 2013) and dismissed an inmate's complaint that he was ordered to be shaved in violation of his religious beliefs.

In San Antonio v. Henry, 2013 U.S. Dist. LEXIS 167343 (ND FL, Nov. 25, 2013), a Florida federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 167347, Nov. 4, 2013), and held that a suit in which an inmate alleged he had been improperly removed from a faith-based dormitory and retaliated against for grieving the incident was properly removed from state to federal court, despite plaintiff's state law allegations.

In Petty v. Lagore, 2013 U.S. Dist. LEXIS 167864 (ED MO, Nov. 26, 2013), a Missouri federal district court dismissed an inmate's complaint that while in Administrative Segregation he could not attend his self-help recovery program and was not allowed to go to church or participate in outside religious activities.

In Vega v. Lantz, 2013 U.S. Dist. LEXIS 167797 (D CT, Nov. 26, 2013), a Connecticut federal magistrate judge in an opinion after a 3-day non-jury trial held that a Muslim inmate's free exercise and RLUIPA rights were not infringed by the cancellation of weekly Jumu'ah prayer when staff is unavailable, denying plaintiff's request to purchase prayer oils from an outside vendor and his request for elective circumcision surgery.

In McCray v. Passaic County Jail, 2013 U.S. Dist. LEXIS 168481 (D NJ, Nov. 25, 2013), a New Jersey federal district court dismissed, with leave to amend, a Muslim pre-trial detainee's complaint that his jail provided Muslim inmates a vegetarian diet, but would not provide them a diet with Halal/Kosher meat.

In Jenkins v. Urbina, 2013 U.S. Dist. LEXIS 169072 (ED CA, Nov. 25, 2013), a California federal magistrate judge dismissed a Native American inmate's complaint that his free exercise and RLUIPA rights were infringed when, being placed in administrative segregation for two days, a corrections officer took his property which included religious items such as beads, sewing needles, choker, and feathers. He did not receive back all the property taken.

Kazakhstan Creates New Initiatives To Combat Religious Extremism

In Kazakhstan on Thursday, several government officials conducted a media briefing on new initiatives to prevent religious extremism. Marat Azilkhanov, head of the Kazakhstan Agency for Religious Affairs, announced a toll-free telephone hot line available throughout the country to furnish people answers to questions about religion. Azilkhanov said:

Two theologians, two psychologists and a lawyer work in the center in a twenty-four hour regime.... People can ask these specialists any religion related questions. They can also receive psychological, legal and advisory assistance. People can also visit this center and receive consultations personally....

Commenting additionally on the hot line, the head of the consulting and information center,Yuliya Denisenko, said that in addition to furnishing information, the hot line will  furnish  psychological aid to people suffering from destructive religious activities. She added:

The information about breach of legislation in the religious sphere, illegal and destructive religious activities received by the center is forwarded to the law-enforcement bodies and departments for religious affairs of the akimats for investigation.

Officials also briefed reporters on educational programs.  A Religious Studies Fundamentals course has been introduced into the 9th grade. It provides basic knowledge about Islam, Christianity and Buddhism. In universities, lectures, films videos, and informal meetings are used to discuss religion related issues. Finally, the Agency for Religious Affairs has created a new E-Islam website to provide comprehensive knowledge about Islam from a secular viewpoint. Eurasianet today posted additional background on these developments.

British Employment Appeal Tribunal Remands Unfair Dismissal Claim By Church of England Rector

In Sharpe v The Worcester Diocesan Board Of Finance Ltd., (UK EAT, Nov. 28, 2013), Britain's Employment Appeal Tribunal remanded for further consideration an appeal by an ordained minister in the Church of England who argued that his service as a Rector is covered by the  Employment Rights Act 1996.  Petitioner claimed that he had suffered detrimental treatment and was constructively and unfairly dismissed as a result of his making protected disclosures.  The Appeals Tribunal held that the UK Supreme Court  decision earlier this year in President of the Methodist Conference v. Preston, (UK Sup. Ct., May 15, 2013), requires a focus on "whether there was an express contract between the Claimant and the Bishop, having regard to the rules and practices of the Church and the particular arrangements made with the Claimant." Explaining the Preston holding that a Methodist minister is not covered by the Employment Rights Act, the Appeal Tribunal said in part:

For a number of reasons... the rights and duties of ministers in the Methodist Church were found to arise entirely from their status in the constitution of the Church, and not from any contract.....

Law & Religion UK blog also has  coverage of the decision.

Court Says Free Exercise Challenge To Blood Alcohol Test Not Clearly Raised

In In re Refusal of Milewski, 2013 Wisc. App. LEXIS 996 (WI App., Nov. 27, 2013), a Wisconsin state appeals court rejected an appeal by Victoria Milewski, a Christian Scientist,whose drivers license was suspended after she refused to take a blood alcohol test. She told officers that her religion did not allow her to permit the intrusion of a needle into her body, but officers refused to give her a urine test instead. At trial, Milewski's counsel argued that Milewski had made a reasonable objection to the blood draw.  The appeals court said:

it appears that Milewski might have been ... attempting to present a First Amendment challenge to the implied consent law.... That is, Milewski might have meant to argue that the implied consent statutory scheme ... impermissibly burdens her right to practice her religion .... I express no opinion about the potential merits of such an argument, because it has not been clearly presented in this refusal proceeding, and certainly has not been supported by legal authority. Therefore, I have no reasonable alternative but to reject it.

Nashville Diocese and Related Entities Sue Over Contraceptive Coverage Mandate

The Tennessean reports that last week the Catholic Diocese of Nashville and a number of its affiliated non-profit organizations filed suit in federal district court challenging the application to them of the federal government's Affordable Care Act contraceptive coverage mandate. Last year a similar suit by the Diocese was dismissed on standing and ripeness grounds. (AP). The new lawsuit is similar to those filed by other religious non-profits since the Obama administration's final rules creating a compromise solution for non-profits were adopted.

Minnesota Supreme Court Suspends Lawyer For Anti-Catholic Statements Against Judges

In In re Petition for Disciplinary Action against Rebekah Mariya Nett, (MN Sup. Ct., Nov. 27, 2013), the Minnesota Supreme Court imposed an indefinite suspension from the practice of law with no right to petition for reinstatement for at least 9 months against an attorney who, among other things, made repeated anti-Catholic slurs directed at a federal bankruptcy judge and several bankruptcy trustees in connection with representing a client. (See prior related posting.) The Supreme Court said:

Nett repeatedly made frivolous and harassing personal attacks and discriminatory statements in 11 different pleadings in five distinct matters. She filed those pleadings in six tribunals over the course of 17 months. She also continued to make false statements about members of the judiciary and others after being sanctioned for the same conduct.

Reporting on the court's decision, the St. Paul Pioneer Press says that some of the objectionable statements were in bankruptcy proceedings of entities related to the Dr. R.C. Samanta Ray Institute of Science and Technology, an alleged cult in which attorney Nett was raised.

European Court Hears Arguments In French Burqa Ban Challenge

Yesterday, the Grand Chamber of the European Court of Human Rights heard oral arguments (video of full arguments) in S.A.S. v. France, (Application no. 43835/11).  As described in a press release from the Court:

The case concerns the complaint of a French national, who is a practising Muslim, that she is no longer allowed to wear the full-face veil in public following the entry into force, in April 2011, of a law prohibiting concealment of one’s face in public places.

(See prior related posting.)

Chicago Catholic Archdiocese Settles Abuse Suit; Agrees To Release Files

The Chicago Sun-Times this week reports that the Catholic Archdiocese of Chicago has agreed to a $2.3 million settlement in a suit by a man now in his early 20's who between 2004 and 2006 was sexually abused by now-defrocked former priest Daniel McCormack. The settlement also calls for the Archdiocese to release on Jan. 15 files on allegations of sexual abuse against a total of 30 priests, including McCormack.  The files will include information on how Church officials responded to the allegations. On its website this week, the Archdiocese confirmed that it plans to release these files in January, and also will update its website to include more complete information on 30 others. In a related posting, the Archdiocese responded to several statements made in a press conference by the president of Survivors Network of Those Abused By Priests.

President's Thanksgiving Day Proclamation

Today is Thanksgiving. Earlier this week, President Obama issued a Presidential Proclamation (full text) setting today as the official date for the holiday this year.  The Proclamation reads in part:

Thanksgiving offers each of us the chance to count our many blessings -- the freedoms we enjoy, the time we spend with loved ones, the brave men and women who defend our Nation at home and abroad....

This Thanksgiving Day, let us ... lift each other up and recognize, in the oldest spirit of this tradition, that we rise or fall as one Nation, under God.

President Sends Hanukkah Greetings

Tonight is the beginning of the Jewish holiday of Hanukkah.  Today the White House issued a statement from President Obama (full text) sending warm wishes to all those celebrating the holiday.  The statement says in part:

For the first time since the late 1800s – and for the last time until some 70,000 years from now – the first day of Hanukkah falls on Thanksgiving.  It’s an event so rare some have even coined it "Thanksgivukkah."  As we gather with loved ones around the turkey, the menorah, or both, we celebrate some fortunate timing and give thanks for miracles both great and small. 

Like the Pilgrims, the Maccabees at the center of the Hanukkah story made tremendous sacrifices so they could practice their religion in peace.

Britain's Supreme Court Says Christian Hotel Owners May Not Refuse To Rent To Gay Couple

In Bull v. Hall, (UK Sup. Ct., Nov. 27, 2013), Britain's Supreme Court held 5-0 that the Equality Act (Sexual Orientation) Regulations 2007 prohibit a Christian couple who operate a hotel from refusing on religious grounds to rent a room with one double bed to a same-sex couple (who were in a civil partnership arrangement). The hotel owners rented double bed rooms only to married couples.  Britain's  Equality Act 2010 distinguishes between "direct" and "indirect" discrimination.  Indirect discrimination-- which is similar to the disparate impact concept in U.S. law-- is allowed if it can be justified as "a  proportionate means of achieving a legitimate aim."  Direct discrimination may not be justified.  All 5 of the Supreme Court's justices concluded that the refusal to rent to the couple amounted to unjustifiable indirect discrimination on the basis of sexual orientation. Three of the justices also concluded that the refusal amounted to direct sexual-orientation discrimination.

Lady Hale's lead opinion disposed of the hotel owners' religious liberty claims rather briefly, saying:

There is no question of ... replacing “legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the defendants’ beliefs)” .... If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today. 

The court's decision in the closely-watched case affirms the conclusion of the Court of Appeals. (See prior related posting.)  The Daily Mail reports on the decision. [Thanks to Marc Stern via Religionlaw for the lead.]

Planned Move of U.S. Vatican Embassy Stirs Conroversy

On Monday, the U.S. State Department held a conference call with reporters (full transcript) to explain its decision to move the U.S. Embassy to the Holy See to a location within the same compound in Rome that houses the U.S. Embassy to Italy and the U.S. Embassy to the United Nations offices in Rome.  As reported yesterday by Religion News Service, former U.S. ambassadors and representatives to the Vatican have charged that this is a downgrading. President Clinton's first ambassador to the Vatican, Raymond Flynn, has been particularly critical, telling the National Catholic Reporter last week:

It's not just those who bomb churches and kill Catholics in the Middle East who are our antagonists, but it's also those who restrict our religious freedoms and want to close down our embassy to the Holy See

However the State Department says there will be no reduction in diplomatic staff. Current U.S. Ambassador to the Vatican Ken Hackett tells National Catholic Reporter that, if anything, the move will give the embassy greater stature. The State Department says the move is motivated by cost savings and serious security concerns.

Pope Francis Issues Important Document On The Future of the Church, Including Role of Religion In Modern Society

As reported by Vatican Radio, yesterday Pope Francis issued an important 224-page document (full text in English) titled Evangelii Gaudium ("The Joy of the Gospel"). The wide-ranging "Apostolic Exhortation" sets out the Pope's vision for the Catholic Church. In a section captioned Social dialogue in a context of religious freedom, the Pope speaks broadly of the role of religion in today's pluralistic society, saying in part:

255. The Synod Fathers spoke of the importance of respect for religious freedom, viewed as a fundamental human right... This includes “the freedom to choose the religion which one judges to be true and to manifest one’s beliefs in public”... A healthy pluralism ... does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism. The respect due to the agnostic or non-believing minority should not be arbitrarily imposed in a way that silences the convictions of the believing majority or ignores the wealth of religious traditions. In the long run, this would feed resentment rather than tolerance and peace.

256. .... Intellectuals and serious journalists frequently descend to crude and superficial generalizations in speaking of the shortcomings of religion, and often prove incapable of realizing that not all believers – or religious leaders – are the same. Some politicians take advantage of this confusion to justify acts of discrimination. At other times, contempt is shown for writings which reflect religious convictions.... Is it reasonable and enlightened to dismiss certain writings simply because they arose in a context of religious belief? These writings include principles which are profoundly humanistic and, albeit tinged with religious symbols and teachings, they have a certain value for reason.

257. As believers, we also feel close to those who do not consider themselves part of any religious tradition, yet sincerely seek the truth, goodness and beauty which we believe have their highest expression and source in God. We consider them as precious allies in the commitment to defending human dignity, in building peaceful coexistence between peoples and in protecting creation.... 

9th Circuit Court Employees Entitled To Health Benefits For Same-Sex Domestic Partners

In In re Fonberg,(9th Cir. Jud. Council, Nov. 25, 2013), the Executive Committee of the Ninth Circuit Judicial Council held unconstitutional the U.S.Office of Personnel Management’s denial of health benefits to the same-sex domestic partner of a law clerk formerly employed by the Oregon federal district court.  The Executive Committee held that this discrimination against domestic partners, vis-a-vis married opposite-sex and married same-sex couples, violated the equal protection and due process rights of the law clerk. The San Francisco Chronicle reports on the decision. [Thanks to How Appealing for the lead.]

Mississippi School District Adopts New Policy To Settle Establishment Clause Suit

A judgment agreed to by the parties (full text) was entered last week in M.B. v. Rankin County School District, (SD MS, 11/22/2013). In the case, brought in federal court in Mississippi on behalf of a high school student, it was alleged that the district high school sponsored assemblies that promoted Christianity, and which students perceived as being mandatory. (See prior posting.) In settling the case, the school district adopted a new policy on religion in the schools and agreed to comply with it to avoid future Establishment Clause violations. The school district also agreed to pay $15,000 for plaintiffs' attorney fees. The American Humanist Association issued a press release announcing the settlement.

Supreme Court Grants Review In Two Contraceptive Coverage Mandate Cases

The U.S. Supreme Court today (11/26/2013) granted certiorari in two cases challenging the Affordable Care Act contraceptive coverage mandate, and consolidated them for appeal allotting one hour for oral argument. (Order List.) The cases are Sebelius v. Hobby Lobby Stores, Inc, (Docket No. 13-354) and Conestoga Wood Specialties v. Sebelius, (Docket No. 13-356).

In the Hobby Lobby case, an 8-judge en banc panel of the 10th Circuit Court (in six separate opinions spanning 165 pages) held that two related family-owned corporate businesses had demonstrated a likelihood of success on their claim that their free exercise rights were substantially burdened in violation of RFRA.  The corporations and their Christian owners objected to providing coverage for those contraceptives they regard as abortifacients.  Five of the 8 judges held that corporations have free exercise rights. Four of the 8 judges also concluded that the individual shareholders have standing to assert claims as well. (See prior posting.) From Becket Fund, here is a link to all the pleadings and briefs in the case since its inception.

In Conestoga Wood Specialties, the 3rd Circuit in a 2-1 decision denied a preliminary injunction sought by a family-owned business which, along with its Mennonite owners, objected to providing coverage for contraceptive methods that may terminate a fertilized embryo. The majority opinion held that "for-profit, secular corporations cannot engage in religious exercise," and that the conscience rights of the owners of a corporation do not pass through to the corporation. (See prior posting.) By a 7-5 vote, the 3rd Circuit denied an en banc rehearing. (See prior posting.) From Becket Fund, here is a link to the prior opinions and Supreme Court filings in the case.

CNN has additional coverage of the Supreme Court's action.

Israeli State Rabbinical Court Fines Mother For Refusing To Have Son Circumcised

Haaretz and  Failed Messiah report that in Israel, the Supreme Rabbinical Court on Sunday denied an appeal from an Oct. 29 decision of the Netanya Rabbinical Court (see Jewish Press, Nov. 7) imposing a fine of  NIS 500 ($140 US) per day on a woman who is refusing to have her one-year old son circumcised. The woman is in the midst of divorce proceedings with her husband who is seeking to force the circumcision. The boy was not circumcised at 8 days of age because of a medical condition, and subsequently, with her husband's agreement, the woman decided "she couldn't do that to my son." There is no circumcision requirement in Israeli civil law.  During the divorce proceedings the husband changed his mind. The appeals court judges apparently concluded, however, that the mother was now refusing to have the boy circumcised as a way to force a reconciliation with her husband. The judges also indicated their concern that allowing a Jewish Israeli woman to leave her son uncircumcised would encourage the anti-ritual circumcision movement in Europe and the United States. The mother argued in court that only Israel's civil family court has jurisdiction to order a circumcision, but the rabbinical court concluded that it also had jurisdiction of the dispute that arose in a divorce proceeding. The mother plans to appeal the decision to Israel's High Court of Justice.

State Employee Appealing Contraceptive Coverage Mandate Asks 8th Circuit For Injunction Pending Appeal

Last month in Wieland v.U.S. Department of Health and Human Services a Missouri federal district court dismissed on standing grounds a suit by a Missouri state employee and his wife who claim that the Affordable Care Act contraceptive coverage mandate forces them to violate their religious opposition to contraception, sterilization, and abortifacients. (See prior posting.) Yesterday, plaintiffs filed with the 8th Circuit Court of Appeals a motion for a preliminary injunction pending appeal and a 20-page memorandum (full text) in support of their motion.

Massachusetts Judge OK's State Funds To Restore Historic Church Windows

On Martha's Vineyard in Massachusetts yesterday, a state trial court judge denied a preliminary injunction, refusing to block the use of state Community Preservation Act funds to restore the stained glass windows at the historic Trinity Methodist Church.  The Vineyard Gazette reports that the court found the plaintiffs had failed to show a likelihood of success on the merits of their claim that the expenditure would violate the federal Establishment Clause, as well as the provision in the  Massachusetts constitution that bars the use of public money for any private religious or charitable undertaking.

FBI Releases 2012 Hate Crime Statistics

Yesterday the FBI released its annual report -- 2012 Hate Crime Statistics. The data show that in 2012, some 19% of the hate crime incidents (1,166 offenses) were motivated by religious bias. Of these, 59.7% were anti-Jewish: 12.8% were anti-Islamic; 6.8% were anti-Catholic; 2.9% were anti-Protestant, and 1% were anti-Atheism/Agnosticism; 9.2% were against unspecified or other religions. 7.6% involved bias against multiple religious groups.  The ADL yesterday issued a press release complaining that over 25% of the country's law enforcement agencies failed to provide the FBI with numbers for 2012 (almost 1500 fewer agencies than last year).  Thus it is unclear how much of a seeming 7% decline in hate crimes since 2011 is due to under reporting. Times of Israel reports on the data.

Court Passes On Discovery Requests In Case Challenging NYPD's Surveillance Of Muslims

In Raza v. City of New York, (ED NY, Nov. 22, 2013), a New York federal district court ruled on challenged discovery requests in a lawsuit by 3 individuals, 2 mosques and a non-profit who claim that the NYPD engaged in unconstitutional surveillance and investigation of Muslim leaders, organizations, businesses and mosques. (See prior posting.)  The court permitted discovery of documents specifically concerning plaintiffs, and information regarding the structure of the NYPD Intelligence Division. It also permitted

discovery regarding any NYPD policy or program involving the investigation of Muslims as a group based, in whole or part, on their religion. Without this discovery, Plaintiffs would be preemptively and irreparably prohibited from proving that Defendants’ alleged discriminatory intent was a motivating factor in the investigation and surveillance of Plaintiffs.

However the court denied plaintiffs' request for information on all NYPD investigations and surveillance of Muslims (whether or not based on their religion) and all investigations and surveillance of non-Muslims on the basis of their religious beliefs or practices. The court concluded that "these requests are, at best, of limited probative value or relevance and, at the same time, impossibly burdensome." Huffington Post yesterday reported on the decision.

Religion Clause Picked In ABA Journal's Blawg 100 Rankings

Click here to vote

I am pleased to announce that Religion Clause has been nominated by the ABA Journal for inclusion in its 7th Annual Blawg 100 rankings.  This is the fifth time in seven years that Religion Clause has made this prestigious list of the top 100 blogs directed at audiences interested in law and lawyers.  Now that the ABA Journal editors have narrowed the list to 100, the Journal asks you to vote for your favorite in each of its 13 categories. Religion Clause has been nominated in the "Niche" category. You may cast your votes in all categories at this link.  The ABA Journal requires a short registration process as part of the voting in order to prevent ballot box stuffing.  I hope you find Religion Clause a worthwhile enough read to vote for it.  Voting ends on Dec. 20.  Thanks to all who nominated Religion Clause for this honor.

Norwegian Foreign Minister Says Government Will Not Propose Ban On Ritual Circumcision

Earlier this month, Norway's health minister said that the government would introduce new legislation limiting or regulating ritual circumcision of boys under 18. (See prior posting.) However, The Foreigner reports that last Friday after the Simon Wiesenthal Center (SWC) warned that a ban would "stand in direct defiance of international laws protecting religious freedom," Norway's foreign minister gave assurances that a ban will not be proposed.  In a letter to the SWC, Minister of Foreign Affairs Børge Brende wrote: "the Norwegian Government recognizes the importance of ritual male circumcision for the Jewish community in Norway… [and] it will not propose a ban on ritual circumcision." In a press release today, SWC thanked Brende and said: "The Wiesenthal Center is ... particularly grateful that Foreign Minister Brende's letter also puts his government on record as 'committed to safeguarding freedom of religion as enshrined in international law'."

It is unclear whether Brende's letter still leaves open the possibility of regulation short of a complete ban. Last month, the Parliamentary Assembly of the Council of Europe in a resolution on children's physical integrity recommended that member countries "clearly define the medical, sanitary and other conditions to be ensured for practices which are today widely carried out in certain religious communities, such as the non-medically justified circumcision of young boys." (See prior posting.)

U.N. Experts Call On Malaysia To Reverse Ban On Catholic Paper Using "Allah" To Refer To God

Three United Nations officials today called on the government of Malaysia to reverse its ban on the Catholic publication, The Herald, using the word "Allah" to refer to God in its Malay language edition. A U.N. press release today reports that U.N. Special Rapporteur on freedom of religion or belief Heiner Bielefeldt, UN Independent Expert on minority issues Rita Izsák, and UN Special Rapporteur on freedom of expression Frank La Rue all called for the government to take action rather than continue to defend its position in Malaysia's Federal Court after a Court of Appeals decision last month (see prior posting) upheld the ban.

Recent Articles of Interest

From SSRN:

• Giovanna Lanni & Alessandra Impellizzeri,  Recenti sviluppi costituzionali in Egitto ed Israele: la tensione fra democrazia e religione come costante del discorso costituzionale in Medio Oriente (Recent Constitutional Developments in Egypt and Israel: The Tension between Religion and Democracy as a Constant of the Constitutional Discourse in the Middle East), (October 23, 2013).
• Wilson Ray Huhn, Slaves to Contradictions: 13 Myths that Sustained Slavery, (November 6, 2013).
• Dian Kartika Rahajeng, The Role of Islamic Banking System as the Milestone Towards Indonesia Micro Economy Development: A Financial Reports Approach, (September 12, 2013).
• Ahmed Parvez, Corporate Governance and Ethics of Islamic Finance Institutions, (Journal of Islamic Economics, Banking and Finance, Forthcoming).
• Brynne Alexis Sharafi, American Multiculturalism, French Universalism, Antiblackness, and the French Headscarf Ban, (November 4, 2013).

From SmartCILP:

• Mark J. Chadsey, Abraham Baldwin and the Establishment Clause, 51 Journal of Catholic Legal Studies 1-40 (2012).
• Seth R. Payne, Mormonism and Same-Sex Marriage: Theological Underpinnings and New Perspectives, [Abstract] 51 Journal of Catholic Legal Studies 41-53 (2012).
• Rev. John A. Perricone, The Relation Between Justice and Love In the Natural Order, [Abstract], 51 Journal of Catholic Legal Studies 55-75 (2012).

Recent Prisoner Free Exercise Cases

In Ricks v. Albitre, 2013 U.S. Dist. LEXIS 163200 (ED CA, Nov. 13, 2013), a California federal magistrate judge permitted an inmate to move forward with his 1st Amendment and RLUIPA claims against various defendants for failure to provide Wiccan religious services.

In Durbin v. Cain, 2013 U.S. Dist. LEXIS 163245 (MD LA, Nov. 15, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 163632, Oct. 24, 2013), and dismissed a Jewish inmate's complaint that he was not permitted to use the prison chapel for Friday evening services and instead was required to use space in the security office.

In McCray v. Holmes, 2013 U.S. Dist. LEXIS 163423 (D NJ, Nov. 15, 2013), a New Jersey federal district court permitted a Jewish inmate to move ahead with his free exercise complaint that he was not furnished kosher meals. However his equal protection claim was dismissed without prejudice.

In Gambino v. Payne, 2013 U.S. Dist. LEXIS 164396 (WD NY, Nov. 18, 2013), a New York federal district court allowed an inmate to proceed with two free exercise complaints-- refusal to allow inmates to cover portions of the shower door to block a correctional officer's view of their genitals, and a complaint that plaintiff's kosher meals were repeatedly mutilated, contaminated and tampered with.

In Delavergne v. Washington State Department of Corrections, 2013 U.S. Dist. LEXIS 164639 (WD WA, Nov.19, 2013), a Washington federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 164643, Sept. 11, 2013) and dismissed without prejudice an inmate's rather incoherent free exercise claim that his therapy uses past and future behavior as teaching tools which do not conform with his belief that Jesus' "blood cleansed" him of his past behavior.

In Adekoya v. Herron, 2013 U.S. Dist. LEXIS 164575 (WD NY, Nov. 19, 2013), a New York federal district court dismissed complaints by plaintiff, an African immigrant of the Spiritism faith, that in the facility in which he was formerly detained his quest for practicing his faith was ignored, his requests to attend services were canceled and his request for a prayer mat was denied.

In Warrior v. Gonzalez, 2013 U.S. Dist. LEXIS 165387 (ED CA, Nov. 19, 2013), a California federal district court permitted an inmate to move ahead with his free exercise, establishment clause, equal protection and 4th amendment challenges to the policy of strip searching Muslim inmates attending religious programming during Ramadan.

In Blakemore v. Godinez, 2013 U.S. Dist. LEXIS 165610 (SD IL, Nov. 20, 2013), an Illinois federal district court allowed a Rastafarian inmate to proceed with his claim for an injunction against enforcement of an Illinois Department of Corrections policy that prevents him from wearing his hair in dreadlocks.

In Hawes v. Breiner, 2013 U.S. Dist. LEXIS 163949 (ND CA, Nov. 14, 2013), a California federal district court rejected an inmate's claim that his rights under the free exercise and establishment clauses were violated by the involuntary administration to him of anti-psychotic drugs.

Angola Steps Up Ban On Mosques In the Country

A report today from OnIslam indicates that the largely Christian country of Angola is stepping up its enforcement of the ban on Islam as an unrecognized religious group operating in the country.  The U.S. State Department's 2012 International Religious Freedom Report described Angolan policy:

Religious groups must petition for legal status with the justice and culture ministries....  By law, a religious group must have over 100,000 members and be present in 12 of the 18 provinces to gain legal status.... 

The high membership threshold for religious groups to acquire legal status restricted registration. The government continued to recognize 83 registered religious groups, but did not register any new groups.... More than 900 organizations have applied unsuccessfully for legal recognition since 1991. The government has not granted legal status to any Muslim groups. Over 2,000 organizations reportedly continued to operate without legal status. The government generally permitted these organizations to exist, function, and grow without legal recognition.

However, speaking last week to the Commission of the National Assembly, Angolan Minister of Culture Rosa Cruz e Silva said:

The process of legalization of Islam has not been approved by the Ministry of Justice and Human Rights, their mosques would be closed until further notice.... All sects on the list published by the Ministry of Justice and Human Rights in the Angolan newspaper Jornal de Angola are prohibited to conduct worship, so they should keep their doors closed.... In addition, we also have a long list of more than a thousand legalization applications.

Meanwhile Angolan President José Eduardo dos Santos said: "This is the final end of Islamic influence in our country." The Nigerian newspaper Osun Defender today says that these steps are designed to prevent the rise of Wahhabi ideology.

UPDATE: According to the Nov. 25 International Business Times , an official at the Angolan embassy in Washington, D.C. says that reports of a ban on Islam in Angola are erroneous, and that the country has freedom of religion.

Employer Offered Reasonable Accommodation To Muslim Employee For Noontime Prayer

In Farah v. A-1 Careers, (D KA, Nov. 20, 2013), a Kansas federal district court dismissed a claim by a Muslim former employee of a temporary staffing agency that the agency unreasonably failed to accommodate his need to pray at noontime. The court held:

Defendants reasonably accommodated Plaintiff’s religious beliefs by offering to let him go off-site daily for his noon prayers. Accordingly, Defendants were not required to consider other proposals and need not show that Plaintiff’s alternative proposals would result in undue hardship....  But assuming, arguendo, the need to do so, the Court finds undue hardship is an independent reason to grant Defendants summary judgment.

The court also concluded that plaintiff had not been constructively discharged.

Report Says Bishops Are Seeking Exit Strategy From Their Strong Opposition To Contraceptive Coverage Mandate

According to the National Catholic Reporter on Friday, despite strong disapproval of the Affordable Care Act contraceptive coverage mandate expressed in a Special Message issued Nov. 13 by U.S. Catholic Bishops at the conclusion of their Fall General Assembly, the bishops are not as united in their opposition as it may seem:

[A]fter repeatedly drawing that line in the sand, a growing number of bishops have begun to push back, arguing that such hard-line rhetoric has put them in an untenable position. These bishops do not want to close Catholic institutions over a birth control policy -- and they say they actually can't do so in most cases.

In addition, they argue that there is no reason to try -- the exemptions and accommodations in the mandate are sufficient, some say, and the church's teaching that access to good, affordable health care is a basic right should outweigh any remaining reservations.

That's why those familiar with the deliberations in Baltimore note that the statement is carefully worded to acknowledge that each bishop can make his own arrangements on health insurance -- as some are doing -- and it begins to provide cover for the entire hierarchy as the prelates try to find an exit strategy.

[Thanks to Perry Dane for the lead.] 

Shinto Is Growing Force In Japanese Politics

The Japan Times yesterday carried an interesting article on the growing influence of Shinto in Japanese politics. Japan’s education minister, Hakubun Shimomura, is concerned about the negative self-image Japanese high schoolers have. His solution is more moral and patriotic education. This is part of a broader political movement:

Many of the nation’s top elected officials, including [Prime Minister Shinzo Abe and Education Minister Shimomura] ... are members of ... Shinto Seiji Renmei (officially, the Shinto Association of Spiritual Leadership...). A sister organization, the Shinto Political Alliance Diet Members’ Association boasts 240 lawmakers, including 16 out of the government’s 19-member Cabinet....

Seiji Renmei sees its mission as renewing the national emphasis on "Japanese spiritual values." In principle, this means pushing for constitutional revision and patriotic and moral education, and staunchly defending conservative values....

The American Occupation of 1945-51 ended Shinto’s status as a state religion and attempted to banish its influence from Japan’s public sphere, notably its emphasis on a pure racial identity linked to the Emperor. The core element of this belief, ruthlessly enforced through the education system, was the emperor’s divine status as a direct descendant of the sun goddess Amaterasu. Though weakened, Shinto conservatives in Japan “were simply biding their time” until they could restore the religion’s rightful place in Japanese society.... 

Insular Jewish Sect Leaves Quebec For Ontario To Escape Child Welfare and Education Officials

In Canada last Monday, 40 Orthodox Jewish families who are members of the fundamentalist, anti-Zionist Lev Tahor ("Pure Heart") sect left their homes in Quebec province and moved to Ontario to escape education and child welfare officials in Quebec. The Toronto Star reported yesterday that the evacuees, which included some 130 children, say they object to requirements that they teach a secular curriculum to their home-schooled children.  Provincial officials say their concerns were more about child neglect, psychological abuse, poor nutrition and health problems than about education.  They have forwarded evidence they collected to Ontario officials. The insular Lev Tahor sect-- whose women dress in black robes that cover them from head to toe and show only their faces-- are led by Shlomo Helbrans who some claim has created a mind-controlled cult.  Before re-establishing his group 13 years ago in Canada, Helbrans served a prison term in New York for second degree kidnapping. [Thanks to Scott Mange for the lead.]

UPDATE: According to the Times of Israel, on Nov. 26 a Quebec juvenile court judge ruled that 14 children from the Lev Tahor community are to be placed in foster care for a month and examined by doctors and psychologists. Apparently this order can be used by Ontario authorities to get a court order to return the children to foster care in Quebec.

Proposed Oregon Initiative Would Exempt Objecting Businesses From Involvement In Same-Sex Unions

The Oregonian reported that this week that a group known as Friends of Religious Freedom have filed a proposed initiative measure (full text) with the Oregon Secretary of State. It is designed to protect private individuals and businesses that have deeply held religious objections from being required to furnish goods, facilities or services for same-sex weddings or civil unions. Last February, the Oregon Attorney General's office opened an investigation into a baker who refused to furnish a wedding cake for a lesbian couple's marriage. (See prior posting.)  The proposed initiative responds to this and to similar applications of anti-discrimination laws elsewhere.  It provides that no individual or business entity acting in a nongovernmental capacity may be penalized by the state or a political subdivision, or subjected to a civil action:

for declining to solemnize, celebrate, participate in, facilitate, or support any same-sex marriage ceremony or its arrangements, same-sex civil union ceremony or its arrangements, or same-sex domestic partnership ceremony or its arrangements.

In a related development, last July supporters of same-sex marriage in Oregon filed with the Oregon Secretary of State a proposed Right to Marry and Religious Protection Initiative (full text). Supporters are currently seeking the 116,284 signatures necessary to get the proposed constitutional amendment on the ballot. Their website says they now have over 115,000 signatures. [Thanks to Alliance Alert for the lead.]

Court Holds That Tax Code's Parsonage Allowance Violates Establishment Clause

In Freedom From Religion Foundation, Inc. v. Lew, (WD WI, Nov. 22, 2013), a Wisconsin federal district court held unconstitutional Internal Revenue Code Sec. 107(2) that excludes from gross income a minister's parsonage allowance. The court held that the exclusion "violates the establishment clause under the [U.S. Supreme Court's] holding in Texas Monthly, Inc. v. Bullock... because the exemption provides a benefit to religious persons and no one else, even though doing so is not necessary to alleviate a special burden on religious exercise."

An important issue in the case was plaintiffs' standing to bring the challenge.  FFRF co-presidents who were plaintiffs ultimately were found to have standing because of the non-excludable housing allowance they received as part of their compensation from FFRF. The court rejected the argument that plaintiffs should be seen as being entitled to claim the parsonage allowance as atheist ministers. The complaint in the case originally also challenged Sec. 107(1) that allows ministers who are furnished a home instead of a housing allowance to exclude the rental value of the home from income. Plaintiffs essentially conceded they lacked standing to pursue that challenge, and the court dismissed that aspect of their complaint. [Thanks to several readers who alerted me to the decision.]

White Earth Chippewa Indians Adopt New Constitution With Religious Protections

On Nov. 19, members of the White Earth Chippewa Nation in Minnesota adopted a new tribal constitution. (Full text.) According to the Indian tribe's website, the tribal council earlier this year voted unanimously to hold a referendum on the proposed draft that was the product of four Constitutional Conventions between 2007 and 2009.  In Tuesday's vote, 2,780 tribal members (79.61%) voted to approve the Constitution and 712 (20.39%) voted against it. According to Tuesday's Fargo Forum, the vote means that the White Earth Reservation is breaking away from the 5 other tribes that make up the Minnesota Chippewas. Included in the new constitution is this provision on religious freedom:

Chap. 3. Art. 1:The White Earth Nation shall make no laws that would establish a religion, or laws that would deny the free expression of religion, speech, or of the press and electronic communication.

This goes further than the provision in the federal Indian Civil Rights Act (25 USC Sec. 1302) which requires tribal governments to respect free exercise of religion, but does not ban the establishment of religion.  MRzine has further background on the White Earth Nation's new constitution.

Advocacy Groups Charge Michigan Banks Are Closing Muslim Customers' Bank Accounts

The Detroit News reported yesterday that CAIR-Michigan has asked the Office of the Comptroller of the Currency and the Consumer Financial Protection Bureau to look into charges that JPMorgan Chase is closing bank accounts of Muslim customers in the metropolitan Detroit area. In July, the Arab-American Civil Rights League complained to the Justice Department and filed a class-action lawsuit making similar charges against Huntington National Bank.

Federal Court Says Contraceptive Coverage Accommodation For Religious Non-Profits Likely Violates RFRA As Non-Profit Suits Keep Being Filed

Yesterday a Pennsylvania federal district court became the first to weigh in on the merits of the accommodation provided for religious non-profit educational and charitable organizations that object to the Affordable Care Act contraceptive coverage mandate.  The court, finding a likelihood of success on the merits in plaintiffs' RFRA challenge to the final rules that were adopted in June, issued an expedited preliminary injunction.  In Zubik v. Sebelius, (WD PA, Nov. 21, 2013), the court said in part:

[A]lthough the “accommodation” legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides contraceptive products, services, and counseling, the “accommodation” requires them to shift the responsibility ... onto a secular source. The Court concludes that Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs.....

The application of these two regulations – one an exemption and one an accommodation – has the effect of dividing the Catholic Church into two separate entities. Now, one regulation (the “exemption”) applies to the worship arm of the Catholic Church and thus applies to all of those employees who work inside a church’s walls. While the other regulation (the “accommodation”) applies to the “good works” arms of the Catholic Church, and thus applies to those who stand on the church steps and pass out food and clothes to the needy.... [B]y dividing the Catholic Church in such a manner ..., the Government has created a substantial burden on Plaintiffs’ right to freely exercise their religious beliefs.

The court went on to hold that the exemption for churches themselves "is an acknowledgment of the lack of a compelling governmental interest" at least as to some employers. It then reasoned:

If the Court were to conclude that the Government’s stated interests were sufficiently “compelling” to outweigh the legitimate claims raised by the nonprofit, religious affiliated/related Plaintiffs, the net effect ... would be to allow the Government to cleave the Catholic Church into two parts: worship, and service and “good works,” thereby entangling the Government in deciding what comprises “religion.”

Pittsburgh Post-Gazette reports on the decision. [Thanks to Luke Goodrich for the lead.]

Meanwhile, another religious non-profit whose challenge originally posed ripeness problems (see prior posting)  has filed a new lawsuit challenging the contraceptive coverage mandate. The case is Belmont Abbey College v. Sebelius,(D DC, filed 11/20/2013) (full text of complaint; press release from Becket Fund).

Suit Challenges Teacher's Involvement In Weekly High School Prayer Group

The American Humanist Association yesterday announced the filing of a federal lawsuit challenging the constitutionality of a weekly Christian prayer session sponsored by the Fellowship of Christian Students at Fayette, Missouri High School. The complaint (full text) in American Humanist Association v. Fayette R-III School Distrct, (WD MO, filed 11/20/2013), alleges that the devotional sessions, held before the beginning of first period in the classroom of Gwen Pope, adviser to the Christian student group, violate the Establishment Clause. Plaintiffs say that Pope participated in the prayer sessions, in violation of school policy. Her husband, a former youth minister for a local Methodist church also attended the sessions. Plaintiffs also allege that the school principal endorsed and promoted the devotional sessions.

Swedish Jewish Activist Applies In Protest For Asylum In Her Own Country

Citing legal attacks in Sweden on kosher slaughter and ritual circumcision, a Jewish political adviser to the Swedish party Folkpartiet announced in an article in Mosaic Magazine that she is applying for refugee status in her own country.  Annika Hernroth-Rothstein wrote in part:

When it comes to our religious traditions, those on both the Right and Left in Swedish politics find common ground; they take pride in defending both animals and children from the likes of us, and from what one politician has called our “barbaric practices.”... 

EU statutes provide that asylum be granted to persons with “well-founded reasons to fear persecution due to race; nationality; religious or political beliefs; gender; sexual orientation; or affiliation to a particular social group.” Jews in Sweden meet these criteria, and should be eligible for the same protection and support extended to non-natives. 

And so today, November 18, I am legally filing for refugee status and asylum—not in America, not in Israel, but here in Sweden, my own country.

Absurd?  No doubt. I can only expect that my application will be summarily dismissed. But the situation is beyond absurdity, beyond op-eds and strongly worded letters of protest. The situation calls for action.

Clergyman Among Recipients of Presidential Medal of Freedom

In a ceremony at the White House yesterday, President Obama awarded Presidential Medals of Freedom to 16 individuals, including one member of the clergy-- Cordy Tindell "C.T." Vivian. (White House press release.) (Full text of President's remarks at the ceremony.) Vivian was a civil rights leader and friend of Dr. Martin Luther King, Jr. He participated in Freedom Rides and sit-ins around the country, and went on to found various civil rights organizations.  Religion News Service has more.

Illinois Governor Signs Marriage Equality Law; Catholic Bishop Responds With Exorcism Prayers

The Chicago Tribune reports that yesterday Illinois Governor Pat Quinn signed into law the Religious Freedom and Marriage Fairness Act, legalizing same-sex marriage in the state. (See prior related posting.) The law takes effect June 1, though some are pressing for additional legislation to speed up the effective date.  Meanwhile, in Springfield, Illinois, Catholic Bishop Thomas Paprocki held a a service, largely in Latin, to offer Prayers of Supplication and Exorcism in Reparation for the Sin of Same-Sex Marriage.  In his homily (full text), he said in part:

Our prayers at this time are prompted by the fact that the Governor of Illinois today is signing into Illinois law the redefinition of civil marriage, introducing not only an unprecedented novelty into our state law, but also institutionalizing an objectively sinful reality....

Our prayer service today and my words are not meant to demonize anyone, but are intended to call attention to the diabolical influences of the devil that have penetrated our culture, both in the state and in the Church....

Since the legal redefinition of marriage is contrary to God's plan, those who contract civil same-sex marriage are culpable of serious sin. Politicians responsible for enacting civil same-sex marriage legislation are morally complicit as co-operators in facilitating this grave sin.....

We must also affirm the teaching of the Catholic Church that homosexual persons "must be accepted with respect, compassion, and sensitivity....." The Church loves homosexual persons and looks upon them with compassion, offering assistance through support groups such as the Courage Apostolate to live in accord with the virtue of chastity.

Consent Decree In EEOC Suit Against Car Dealership That Refused To Hire Sikh

The EEOC announced yesterday the entry of a consent decree in a suit against a New Jersey car dealership for refusing to hire a Sikh man as a sales associate because his religiously-required beard did not meet the company's dress code. The decree in EEOC v. United Galaxy Inc., d/b/a Tri-County Lexus, (D NJ), orders the dealership to pay $50,000 in damages for failing to reasonably accommodate Gurpreet Kherha's religious exercise. The decree also enjoins future discrimination, requires anti-discrimination training of staff, and posting of related information.

Obama Criticized As Anti-Religious For Reading First Gettysburg Address Version

To mark yesterday's 150th Anniversary of Lincoln's Gettysburg Address, documentarian Ken Burns has urged everyone to video themselves reciting the Address. His Learn the Address website, which features a number of celebrities delivering the speech, points out that there are 5 versions of the Gettysburg Address.  Burns specifically asked President Obama to recite the "Nicolay Version"-- the earliest version of the speech which, among other things, does not include the reference to "God" that ended up in later versions. A number of conservative commentators and websites-- perhaps unaware of why the President did so-- strongly attacked Obama for "omitting God" in the Gettysburg Address. For example, a Liberty Counsel press release said:

After five years of tearing down religious liberty, it is neither surprising nor unexpected that President Obama disregarded “under God” when reciting the Gettysburg Address. Today the “new birth of freedom” means taking a stand against a tyrannical, antireligious assault at every level of government from the Department of Justice, to city halls, to the public schools.

And American Family Association Issue Analysis Director Bryan Fischer tweeted: "Obama's omission of 'under God' is more evidence of his anti-Christian bigotry. He honors Islam but disrespects Christianity."

According to a CBS News report:

White House spokesman Jay Carney on Tuesday gave a simple explanation for the reading. "He read the version of the address that Ken Burns provided," he said, noting that Burns is a "noted Civil War scholar."

Britain's Court of Appeal: Christian Radio Ad Barred By Ban On Political Advertising

Britain's Communications Act 2003 prohibits the broadcasting of any "advertisement which is directed towards a political end."  In London Christian Radio Ltd. v Radio Advertising Clearance Centre, (Ct. App., Nov. 19, 2013), the England & Wales Court of Appeal in a 2-1 decision held that a proposed ad from a publisher of Christian magazines that was to be run on a Christian radio station violates this ban.  The proposed ad stated:

We are CCP. Surveys have shown that over 60% of active Christians consider that Christians are being increasingly marginalised in the work place. We are concerned to get the most accurate data to inform the public debate. We will then use this data to help make a fairer society. Please visit CCPmagazines.co.uk and report your experiences.

In upholding the decision of the Radio Advertising Clearance Center to bar the ad, Lord Justice Dyson said in part:

What matters is the effect of an advertisement on political debate. The question is whether it will frustrate the statutory aim of ensuring that, so far as practicable, the playing field of political debate is level....

Lord Justice Elias dissenting said in part:

The only issue is whether, considered objectively and by focusing solely on the advertisement, the listener is being subjected to a partial political message.... The fact that the purpose is to enable the advertiser in future to seek to exert such influence and operate as a more effective pressure group does not in my judgment amount to an infringement of [the statute].

Huffington Post UK reports on the decision.

Note To Readers-- Still Working With Template

Religion Clause followers know I have been tinkering with the blog's traditional template style.  Some intensive users found the new format to require excessive scrolling.  So I am tinkering some more-- now with a wider body and Arial typeface. This makes all but the longest posts readable without scrolling. I have also added a "Recent Posts" box at the top of the sidebar to allow you to browse recent post topics without scrolling. Particularly to those who liked the first new template, let me know it this eliminates its advantages for you.  And for those who did not like it, let me know if this is still too much scrolling for you.  By the way, all standard browsers allow you to increase or decrease the size of the print you are reading by zooming in or out.

Split Ohio Supreme Court Upholds Firing Of Science Teacher For Refusing To Remove Religious Materials

In a 4-3 decision today, the Ohio Supreme Court upheld the firing of middle school science teacher John Freshwater for insubordination in failing to comply with orders to remove religious materials from his classroom.  In Freshwater v. Mount Vernon City School District Board of Education, (OH Sup. Ct., Nov. 19, 2013), Chief Justice O'Connor in an opinion joined by Justices French and O'Neill held that the school improperly ordered Freshwater to remove his personal Bible from his desk. The order infringed Freshwater's free exercise rights; the Bible posed no threat of an Establishment Clause violation because Freshwater did not use it while teaching.  However, Freshwater was properly removed for insubordination in failing to comply with orders to remove other religious materials from his classroom.  The Chief Justice added:

Accordingly, based on our  resolution of this threshold issue, we need not reach the constitutional issue of  whether Freshwater impermissibly imposed his religious beliefs in his classroom.

Justice Lanzinger wrote a separate opinion joining only the court's syllabus in the case, saying:

I would hold that the school district’s order that John Freshwater put away his personal Bible while students were present was a reasonable and valid attempt to avoid an Establishment Clause violation. That order did not infringe on Freshwater’s free speech rights, for he was not required to remove the Bible from the classroom—merely putting the book into a desk drawer during class time would have sufficed.

Justice Pfeifer, in a rather blistering dissent, argued that the core of the insubordination charges against Freshwater involved his refusal to remove his personal Bible. Pfeifer agreed with the lead opinion that the order to remove it was improper but disagreed on the handling of the remaining insubordination charges:

With the insubordination claim gutted, the lead opinion should have moved on to consider the constitutional issues remaining in the case. Instead, the majority walks away from the opportunity to provide helpful guidance....

Thus concludes the sorry saga of John Freshwater, excellent junior-high science teacher, terminated as a result of an extreme overreaction of the parents of a decent student, followed by even less informed and measured responses by Mount Vernon school administrators and the school board.... [T]hey have managed to divide a really nice community and cost the school board and/or its insurance providers well over a million dollars to free itself of a very good teacher. And the people they did it for left town. 

There is a clear set of winners today: the lawyers.... They have told themselves that they are participating in the evolved version of the Scopes trial, when in reality they have created a modern Jarndyce and Jarndyce.... 

This court accepted jurisdiction in this case presumably to speak to the important issues of the Establishment Clause, academic freedom, and how schools may approach educating children about the scientific theories of evolution, which may directly clash with religious teachings of creation to which many children have been exposed at home and at church. Instead this court ... [leaves] the resolution of all these heady matters in the hands of a lone referee. Ironically, the lead opinion in this case proves the existence of God. Apparently, he’s an R.C. 3319.16 referee from Shelby.

Justice O'Donnell also filed a dissenting opinion, which was joined by Justices Pfeiffer and Kennedy. He argued that there was insufficient evidence to support the insubordination claim, and that Freshwater was improperly charged with injecting his personal religious beliefs into his teaching:

[T]he evidence in this case reveals that the school board has misinterpreted Freshwater’s effort to challenge students to think critically about evolutionary theory and instead construed his instruction as promoting intelligent design from a creationist perspective. This is a misimpression and contrary to the evidence in this case, and it is not a basis to terminate the contract of a teacher. 

The school board ... apparently assumed that he could not fairly present lessons on evolution and stated that he “not only injected his subjective, biased, Christian religion based, non-scientific opinion into the instruction of eighth grade science students but also gave those students reason to doubt the accuracy and or veracity of scientists, science textbooks, and/or science in general.” Yet student scores on standardized tests stand as strong, persuasive evidence of the board’s faulty conclusion; those scores instead reveal that Freshwater did teach evolution as mandated by the curriculum. Moreover, teaching students to question and rethink accepted scientific theories is essential to their understanding of the scientific method, the key concept his science students learned in eighth grade.

The Supreme Court also issued a lengthy press release on the decision, and the Columbus Dispatch reports on the decision.

Federal Jury Awards Portland City Employee Damages In Religious Harassment Case

In Portland, Oregon, a federal jury earlier this month awarded a former city employee damages of $14,080.  It found in its Nov. 8 special verdict (full text) that plaintiff was subjected to a hostile work environment based on her religion, and that the city knew or should have known about the situation and failed to take prompt effective remedial action.  As reported by yesterday's Oregonian, the complaint (full text) in Griffin v. City of Portland, (D OR, filed 4/9/2013) claimed that co-worker Theresa Lareau harassed plaintiff KellyMarie Griffin about her strong Christian beliefs, repeatedly making profane statements that offended Griffin and telling Griffin: "I’m tired of your Christian attitude and your Christian shit all over your desk and your Christian shit all over the place. I’m going to file a complaint against you the next time I sneeze and you say 'bless you'. You’re just doing it for the attention; you wear it on your sleeve like a badge and I’m sick of it. It offends me."

Court Will Approve Settlement In Class Action By Michigan Muslim Inmates

According to the Wall Street Journal, at a hearing yesterday a Michigan federal court judge indicated he would approve a proposed settlement (full text) in a long-running class-action lawsuit by Muslim prisoners.  Under the settlement in Dowdy-El v. Caruso, (ED MI), the state will provide Muslim inmates meals that comply with halal standards.  The settlement does not require the meals to include meat, and the state says it plans to furnish vegan meals to meet its obligations.  The settlement also provides a procedure for inmates who were disciplined because of conflicts between religious services and work, school or administrative detail assignments to have the record of disciplinary actions expunged.

Catholic Diocese of Gallup Becomes Ninth To File For Bankruptcy Protection

Last week (Nov. 12), the Catholic Diocese of Gallup-- which encompasses parts of New Mexico and Arizona-- became the ninth Catholic diocese in the United States to file for Chapter 11 bankruptcy reorganization. As reported by the Albuquerque Journal, the diocese includes a large part of the Navajo Nation, as well as 6 other tribes and pueblos. The day before the filing, the diocese posted a letter (full text) from Bishop Wall reiterating a statement he made in September that bankruptcy reorganization is "the only way to equitably and mercifully deal with the mounting sex abuse claims, still meet our commitment to [parishioners] and continue the outreach mission of the Church." Two separate bankruptcy petitions, along with a motion for joint administration of the two cases, were filed in federal bankruptcy court in New Mexico since the diocese is organized through two separate entities-- a New Mexico corporation sole and an Arizona corporation sole.  The full text of all the legal documents involved are available from the Diocese's website. [Thanks to Douglas Carver for the lead.]

Hotel Settles Religious Discrimination Suit With EEOC

The EEOC announced today that the MCM Elegante Hotel in Albuquerque, New Mexico has agreed to settle a religious discrimination suit brought by the EEOC charging that the hotel refused to accommodate a Muslim employee, Safia Abdullah, who was hired for a housekeeping position.  The hotel insisted that Abdullah remove her hijab  (religious head scarf), and fired her when she refused.  Under the settlement, the hotel will pay $100,000 in damages and consent to an injunction baring future discriminatory practices. It will also institute new training and notice procedures.

Former Israeli Chief Rabbi Arrested On Bribery Charges

In Israel, the country's former Chief Ashkenazi Rabbi Yona Metzger was arrested by police today on charges of bribery, money laundering, obstructing an investigation, and fraud.  Haaretz reports that police suspect Metzger, as chief rabbi, took bribes totaling millions of shekels (1 NIS= $0.28 US) from non-profit organizations in exchange for advancing their interests. In June, as Metzger neared the end of his term as chief rabbi, it was initially announced that he was under investigation. (See prior posting).

USCIRF Issues New Policy Brief On Role of Shariah in Sudanese Law

The U.S. Commission on International Religious Freedom last week issued its most recent Policy Brief, this one titled Sudan’s Enduring Question: The Role of Shari'ah in the Constitution and Law, (Nov. 2013). The Policy Brief says in part:

In December 2010, Sudanese president Omar al-Bashir declared that Sudan’s new constitution will be based on his government’s interpretation of Islamic (Shari’ah) law. Senior officials continue to repeat his declaration, as opposition parties and civil society representatives insist that Sudan’s new constitution be based on universal human rights and reflect Sudan’s commitments to international human rights standards, including freedom of religion or belief.

Concerns about Shari’ah being central to a future constitution ignore the fact that Sudan’s current legal system already is based on a restrictive interpretation of Shari’ah provisions and corresponding hudood, or classes of crimes with set punishments.

Recent Articles, Book and Webcast of Interest

From SSRN:

• Patrick Parkinson, Child Sexual Abuse and the Churches: A Story of Moral Failure?, (Sydney Law School Research Paper No. 13/78, 2013).
• Neil Parpworth, The Succession to the Crown Act 2013: Modernising the Monarchy, (The Modern Law Review, Vol. 76, Issue 6, pp. 1070-1093, 2013).
• Anna Su, Exporting Freedom: Religious Liberty and American Power, (November 2, 2013).
• John Montague, The Law and Financial Transparency in Churches: Reconsidering the Form 990 Exemption, (35 Cardozo Law Review 203 (2013)).
• Chibli Mallat & Mara Revkin, Middle Eastern Law, (Annual Review of Law and Social Science, Vol. 9, pp. 405-433, 2013).
• Daniel L. Chen & Susan Yeh, The Construction of Morals, (Journal of Economic Behavior and Organization, Forthcoming).
• Gregory P. Magarian, The New Religious Institutionalism Meets the Old Establishment Clause, (Washington University in St. Louis Legal Studies Research Paper No. 13-11-04, 2013).
• Tracy A. Thomas, Gay Divorce, (U of Akron Legal Studies Research Paper, 2013).
• Sara Rankin, Invidious Deliberation: The Problem of Congressional Bias in Federal Hate Crime Legislation, (Rutgers Law Review, Forthcoming).
• Grace Soyon Lee, Mitigating the Effects of an Economic Downturn on Charitable Contributions: Facing the Problem and Contemplating Solutions, (Cornell Journal of Law and Public Policy, Vol. 22, 2013).
• Karim Ginena & Jon M. Truby, Deutsche Bank and the Use of Promises in Islamic Finance Contracts, (Virginia Law & Business Review, 7(4), 620-649, 2013).

From SmartCILP:

• D. Wendy Greene, A Multidimensional Analysis of What Not To Wear In the Workplace: Hijabs and Natural Hair, 8 Florida International University Law Review 333-367 (2013).
• Law of Life. Preface by Alexis Barkis; articles by Bernard Dobranski, Eugene R. Milhizer, Rebekah C. Millard, D. Brian Scarnecchia, Lynn D. Wardle and Susan Yoshihara. 11 Ave Maria Law Review 207-409 (2013). 

Recent Book:

• Sarah Palin, Good Tidings and Great Joy: Protecting the Heart of Christmas, (Harper Collins, Nov. 12, 2013), reviewed by Time.

Webcast of Interest:

• Newseum, Panel Discussion: Restored or Endangered? The State of Free Exercise of Religion in America, (November 07, 2013).

Recent Prisoner Free Exercise Cases

In Smith v. Goord, (2d Cir., Nov. 15, 2013), the 2nd Circuit affirmed dismissal of a Muslim inmate's RLUIPA and equal protection challenges to the lack of Islamic services at a facility where he was held for approximately 4 weeks.

In Awe v. Virginia Department of Corrections, 2013 U.S. Dist. LEXIS 161227 (WD VA, Nov. 12, 2013), a Virginia federal district court dismissed an inmate's claim that the Virginia Department of Corrections Common Fare policy requiring inmates to sign an agreement to consent to possible suspension from the diet violates his free exercise and equal protection rights. Plaintiff was suspended for having a fried egg from the master menu in his pocket.

In Gooch v. Georgia Department of Corrections, 2013 U.S. Dist. LEXIS 160882 (MD GA, Nov. 12, 2013), a Georgia federal district court adopted in part a magistrate's recommendation (2013 U.S. Dist. LEXIS 161630, Sept. 18, 2013) and permitted an inmate to proceed against various defendants on his claim that they  failed to provide him with a specific diet required by his religion.

In Hall v. Bradshaw, 2013 U.S. Dist. LEXIS 162284 (WD NC, Nov. 14, 2013), a North Carolina federal district court dismissed an inmate's claim that his request for a Native American bible was denied.

President Announces Nominee For Assistant Attorney General For Civil Rights

Last Thursday, President Obama announced his intention to nominate Debo P. Adegbile as Assistant Attorney General to head the Civil Rights Division of the Department of Justice.  The Civil Rights Division enforces federal anti-discrimination laws, including those that prohibit religious discrimination.  The nominee has served since July as Senior Counsel to the United States Senate Judiciary Committee, and before that worked at the NAACP Legal Defense and Educational Fund.

NYPD's Grooming Rule Violates Free Exercise Rights of Orthodox Jewish Officer

In Litzman v. New York City Police Department, (SD NY, Nov. 15, 2013), Fishel Litzman, a member of the Chabad Lubavitch Orthodox Jewish movement, was accepted into the NYPD Police Academy and sworn in as a probationary police officer. He sued when his request for a religious accommodation to allow him to wear a one-inch long beard was denied and he was fired for continuing to wear his beard. NYPD policy allowed for medical and religious exceptions to the Department's no-beard rule, but only for beards that do not exceed one millimeter in length. A New York federal district court held that while the police department had not violated Title VII of the 1964 Civil Rights Act by failing to accommodate Litzman's religious exercise, it did violate his 1st Amendment free exercise rights and the New York City Human Rights Law.

The NYPD prevailed under Title VII because it carried its burden of showing that an accommodation would create "undue hardship." The New York City Human Rights Law similarly requires accommodation, but has a definition of "undue hardship" that creates a much higher hurdle for the employer.  NYPD failed to meet that test. Analyzing plaintiff's 1st Amendment free exercise claim, the court concluded that strict scrutiny should be applied:

Here, the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound. The ... NYPD provides temporary exemptions to police officers who grow beards beyond the one-millimeter limit for special occasions, such as religious holidays, weddings, and funerals.... Defendants also admit that the NYPD has police officers with beards in excess of one-millimeter in length, not only because of formal exemptions due to undercover assignments, but also because the NYPD does not always enforce its personal appearance standards....  Because there is evidence that the NYPD exercises discretion with respect to a facially neutral rule in a discriminatory fashion, strict scrutiny is appropriate.

New York Daily News reports on the decision.

Obama Sends Greetings To Sikhs Celebrating Birthday of First Sikh Guru

Yesterday, President Obama issued a statement (full text) extending best wishes to Sikhs in the United States and around the world as they celebrate the anniversary of the birth of Guru Nanak Dev Ji, the first Sikh Guru.  The statement says in part:

This sacred time is an occasion to reflect on Guru Nanak’s timeless teachings and the principles that are at the heart of Sikhism, including the equality of all human beings, the pluralism we cherish in diverse societies and the compassion we owe one another.  

Note To Readers On Template Redesign

I have done a bit of a redesign on the template for Religion Clause blog, hopefully to make it more readable.  I invite comments on whether it has succeeded.