Religion Clause

Monday, December 09, 2013

Arizona Indian Tribes Seeking To Block Paris Auction Of Sacred Items

According to AFP, in France on Friday a Paris court dismissed a lawsuit attempting to stop today's auction of 25 sacred objects from the Hopi and San Carlos Apache tribes in Arizona. The judge wrote: "while the sale of these cultural objects can constitute an affront to the dignity of the Hopi tribe, this moral and philosophical consideration does not in itself give the judge the right to suspend the sale of these masks which is not forbidden in France." On Saturday, the U.S. Embassy in Paris issued a press release stating that it had delivered a letter to the EVE auction house on behalf of the two Indian tribes requesting a delay in the auction scheduled for Dec. 9-10 so that the tribes "might  have  the opportunity  to  identify  the  objects,  investigate  their  provenance  and  determine whether  they  have  a  claim  to  recover  the  items  under  the  1970  UNESCO Convention  on  the  Export  and  Transfer  of  Ownership  of  Cultural  Property,  to  which  France  is  a  signatory,  or  under  other  laws."

UPDATE: AP reports that the EVE auction house went ahead with the sale of the objects, saying that their action is legal under French law. One of the masks being auctioned was purchased by the Hopi's French lawyer who intends to return it to the tribe.

Guardian For Amish Girl's Medical Decisions Seeking To Withdraw

In Akron, Ohio, a court-appointed guardian for an 11-year old Amish girl with leukemia is seeking court approval to withdraw from the case. AP reports that the guardian, an attorney and registered nurse, has decided to drop her attempt to force the girl to resume chemotherapy treatments since she no longer knows where the girl is and cannot monitor her condition. The girl's parents decided to stop the chemotherapy, believing that it was making her sick and would ultimately kill her. They went into hiding with the girl after a state appeals court (see prior posting) upheld the appointment of the guardian. The parents are treating the girl with herbs and vitamins. Doctors at Akron Children's Hospital say that the girl's leukemia is treatable, but that she will die within a year unless chemotherapy is resumed.

Hindu Priest Charged In Georgia With Bankruptcy Fraud, Money Laundering

In Atlanta, Georgia last Wednesday, the former priest of a Norcross (GA) Hindu temple and the temple's former CEO were arraigned on federal charges of conspiracy, bankruptcy fraud, money laundering and obstructing justice. According to the Dayton (OH) Daily News, prosecutors charge that the priest, Annamalai Annamalai, a native of India who also goes by the name Dr. Commander Selvam, fraudulently concealed property belonging to the Hindu Temple and Community Center of Georgia, Inc. from its court-appointed bankruptcy trustee. The indictment charges that the priest funneled over $1 million of Temple money to his own and his family's accounts and businesses, as well as to various priests.

Sunday, December 08, 2013

Pakistan Supreme Court Issues Orders In Hajj Corruption Case

In Suo Moto Case No. 24 of 2010, (Pak. Sup. Ct., Dec. 6, 2013), a 3-judge bench of the Pakistan Supreme Court handed down a decision in the long-running case involving massive corruption in the arrangements for Pakistani Hajj pilgrims for the year 2010. the court held:

(i) Federal Investigation Agency is directed to probe into the matter in depth and determine as to whether the extra amount charged by the authorities has been reimbursed to the Hujjaj or not?

(ii) Strict measures should be adopted in future in order to avoid such like incidents of corruption in Hajj arrangements, whereby not only the pilgrims had been looted but also it had brought a bad name to the country.

(iii) The Government should issue the guidelines regarding the Hajj arrangements including hiring of buildings for providing accommodation to Hujjaj as well as transportation and other facilities during Hajj.

(iv) The FIA is directed to take strict action against all those persons including politicians, officers and others in echelons of power, who interfered with and hampered the investigation....

(v) The amount of Rs.5000/- charged by the Hajj Tour Operators from each Haji in excess of the actual amount be refunded to them.

Reporting on the decision, the Express Tribune explained:

Former Federal Minister for Religious Affairs Syed Hamid Saeed Kazmi, former director-general Hajj affairs Rao Shakeel and former additional secretary to ministry of religious affairs Raja Aftabul Islam were accused of being involved in widespread corruption. They were accused of renting residential buildings for Pakistani pilgrims in Saudi Arabia at exorbitant rates and inflicting a loss of a billion rupees to the national exchequer.

(See prior related posting.)

Interview Published With New U.S. Ambassador To The Vatican

Last week Zenit published an interview (Part 1, Part 2) with Ken Hackett, the new U.S. ambassador to the Holy See. Hackett, among other things, talked of his background, his goals as ambassador, and discussed the controversy surrounding the moving of the U.S. embassy from its original location to a site near the U.S. embassy to Italy. (See prior posting.)

Unofficial English Translation of Egypt's New Draft Constitution Now Available

An unofficial English translation of Egypt's new draft Constitution is now available from Eman Nabih's blog. (Note the translation begins about 10 paragraphs down in the linked blog post.) The translation does not include a long Preamble that appears in the Arabic version. Here are the articles most relevant to religion and state issues:

Article (1): Arab Republic of Egypt is a sovereign state, united and indivisible, a democratic republic, based on citizenship and the rule of law. Egyptian people is part of the Arab nation and work on integration and unity, and Egypt is part of the Islamic world, belong to the African continent, and is proud of its spillover Asia, and contribute to the building of human civilization.

Article (2): Islam is the state religion, and Arabic is its official language, and the principles of Islamic Sharia are the main source of legislation.

Article (3): The principles of the laws of the Egyptian Christians and Jews’s legislation are the main source of legislation governing their personal status and their religious affairs, and the choice of their spiritual leaders.

Article (7): Al-Azhar is Islamic scientific independent institution, exclusively specializing to carry on all his affairs, which is the main reference in religious sciences and Islamic Affairs, and is in charge of advocacy and dissemination of the religion science and the Arabic language in Egypt and the world. The State is committed to provide sufficient funds to achieve its objectives. Sheikh of Al-Azhar is independent and non-insulated, and the law regulates his nomination among the members of the senior scientists.

Article (10): family is the basis of society, founded on religion, morality and patriotism, and the state is keen on the cohesion and stability and the consolidation of its values.

Article (11): The State ensures the achievement of equality between women and men in all civil, political, economic, social and cultural rights in accordance with the provisions of the Constitution. The State takes measures to ensure the representation of women are adequately represented in parliaments as prescribed by the law, and ensures women’s right to hold public office and functions of senior management in the country and recruitment in agencies and judicial institutions, without discrimination against them. The State is committed to the protection of women against all forms of violence, and to ensure the empowerment of women to reconcile family duties and work requirements. The State also is committed to provide care and protection of motherhood, childhood and women-headed households and the elderly and women most in need.

Article (24): Arabic language, religion and national history in all its stages are basic materials in the Pre-University public and private education. Universities operate on the teaching of human rights, values and professional Scientific ethics disciplines.

Article (50): Egypt heritage of civilization, culture, moral and material in all its diversity and grand stages, ancient Egyptian, Coptic, and Islamic, national and humanely wealth is the commitment of the state to maintain it and protect it, as well as the balance of contemporary architectural cultural, literary and various artistic and its diversity, and the attack on any of this is a punishable crime by the law. The state pays special attention to maintain the components of cultural pluralism in Egypt.

Article (64): Freedom of belief is absolute. And the freedom of religious practice and the establishment of houses of worship to the owners of the heavenly religions, the right to be regulated by the law.

Article (65): Freedom of thought and opinion is guaranteed. Everyone has the right to express his opinion by saying, or writing, or photography, or other means of expression and publication.

(Article 74): The citizens have the right to form political parties, to be notified and regulated by the law. And may not be engaging in any political activity, or do political parties based on religion, or on the basis of discrimination on grounds of sex, origin, or on the basis of sectarian or geographic, or exercise hostile activity to the principles of democracy, or a secret, or a nature military or quasi-military. Parties not to be dissolved without a court order.

Article (244): The State works to represent the youth and Christians and persons with disabilities and Egyptian living abroad appropriately in the first elected Deputies Council after this constitution is adopted, so as prescribed by the law.

See prior related posting.

Recent Prisoner Free Exercise Cases

In Hilley v. Humes, 2013 U.S. Dist. LEXIS 169577 (SD GA, Dec. 2, 2013), a Georgia federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 169794, Aug. 20, 2013) and dismissed an inmate's complaint that Sunday morning Baptist church services were sometimes being cancelled or cut short.

In Chambers v. Harner, 2013 U.S. Dist. LEXIS 170591 (SD IL, Dec. 3, 2013), an Illinois federal district court permitted an African Hebrew Israelite inmate to proceed with his complaint that he was denied a kosher diet and religious reading materials, and that his dietary request was handled differently because of his race.

In Vega v. Rell, 2013 U.S. Dist. LEXIS 170835 (D CT, Dec. 4, 2013), a Connecticut federal district court held that defendants had qualified immunity on a Muslim inmate's complaint regarding administration of a program to purchase holiday food packages, but did not have immunity on complaints regarding identification of commissary items as Halal,"serving of non-Kosher, non-halal cheese on the common fare menu, and failure to clean rugs used for prayer. The court also held that damages are not recoverable under RLUIPA.

In Nji v. Heath, 2013 U.S. Dist. LEXIS 171112 (SD NY, Dec. 2, 2013), a New York federal district court permitted an Episcopalian inmate to proceed against one of the defendants on his complaint that his request to be let out of keeplock to attend Christmas services was denied.

In Woods v. Adams, 2013 U.S. Dist. LEXIS 171178 (EDCA, Dec. 4, 2013), a California federal magistrate judge ordered plaintiff to file a new complaint clarifying his "mishmash"of claims. Among the claims were ones that his free exercise rights were infringed when he was denied a kosher meal and was prevented from wearing his kippah at all times.

In Jack-Bey v. Tribley, 2013 U.S. Dist. LEXIS 171315 (WD MI, Dec. 5, 2013), a Michigan federal district court permitted an inmate who was a member of the Moorish Science Temple of America to proceed with his free exercise complaint that he was barred from entering the prison law library with religious reading material.

In Hoeck v. Miklich, 2013 U.S. Dist. LEXIS 171648 (D CO, Dec. 5, 2013), a Colorado federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 171645, Nov. 7, 2013) and dismissed without prejudice complaints by an inmate who is a member of the Church of God that defendants deprived him of meals to observe holy days and feasts, a place for worship, the right to observe his Holy Sabbath without retaliation, and religious objects (including a Hymnal) needed to follow doctrines of "Biblical Christianity."

Saturday, December 07, 2013

Texas Group Promotes Acnowledgement of Christmas In Public Schools

Today's Fort Worth Star-Telegram reports on the Merry Christmas Texas project launched by the non-profit group Texas Values. Building on the so-called Merry Christmas Law passed by the Texas legislature earlier this year (see prior posting), the project is billed as "a state-wide effort to educate and protect the acknowledgement of Christmas in public schools and ensure the religious liberty of children, parents, teachers, and school administrators." It includes radio ads in the four largest media markets in the state, and a fact sheet on the new law.

Colorado Civil Rights Commission Initial Decision Holds Bakery Violated Law In Refusing Cake For Same-Sex Wedding

In Craig v. Masterpiece Cakeshop, Inc., (CO Civ. Rts. Commn., Dec. 6, 2013), an Administrative Law Judge for the Colorado Civil Rights Commission held that a bakery and its owner illegally discriminated against a same-sex couple on the basis of sexual orientation in refusing to sell them a wedding cake. The bakery owner claimed that creating cakes for same-sex weddings violates his religious beliefs. The ALJ held that the refusal violated the public accommodation anti-discrimination ban in C.R.S. Sec. 24-34-601(2), rejecting the argument that the refusal was not "because of" the couple's sexual orientation.

The ALJ also rejected respondents' claims that requiring them to prepare the cake would violate their free speech and free exercise rights protected by the U.S. and Colorado constitutions. The ALJ held that this would not amount to compelled speech, saying that the bakery owner "was not asked to apply any message or symbol to the cake, or construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage." Also any impact on free speech "is 'plainly incidental' to the government's right to regulate objectionable conduct." The ALJ rejected respondents' free exercise claim, finding that the anti-discrimination law is neutral and of general applicability.

The ALJ's initial decision may be appealed to the full Civil Rights Commission (Commn. Rule 10.13), and from their to the state court of appeals (C.R.S. Sec. 24-24-307). The ACLU issued a press release announcing the decision. Fox News and AP report on the decision. [Thanks to Alliance Alert for the lead.]

Friday, December 06, 2013

Donors Sue Kabbalah Centre Claiming Fraud

The Forward reports that on Nov. 27, a suit was filed in Los Angeles County (California) Superior Court against the Kabbalah Centre by two sets of plaintiffs alleging fraud and misuse of hundreds of thousands of dollars they gave to the charity. Plaintiffs claim they were told their donations would go toward a new Kabbalah Centre building in San Diego and for a children’s charity, but the building was never built and the charity ceased operations. The controversial Kabbalah Center has attracted well known Hollywood celebrities as followers.

White House Promotes Its International Human Rights Agenda

The NGO Human Rights First convened its second-annual "Human Rights Summit: American Ideals. Universal Values" on Dec. 4 and 5. Among the speakers at the event held at the Newseum in Washington, D.C. was President Obama's National Security Adviser, Susan E. Rice. Her wide-ranging speech (full text) included only two specific references to U.S. concerns about religious freedom or religious conflict. She condemned the Chinese for denying fundamental freedoms to ethnic and religious minorities such as Tibetans and Uighurs. She also called for national reconciliation in Bahrain, discouraging actions that sharpen religious divisions there.

On Wednesday, the White House issued a Fact Sheet providing further details on the Administration's international human rights agenda, including a section on religious freedom initiatives:

The Department of State manages approximately $10 million in foreign assistance programs to promote religious freedom, which includes current efforts to remove discriminatory and hateful material from Middle Eastern textbooks, promote greater awareness of intolerance and the plight of religious minorities globally, and hold discussions with the Pakistan government, civil society, and the religious community on issues such as curriculum reform in the public and madrassa education systems. The State Department also implements programs to support the Human Rights Council resolution on combatting discrimination and religious intolerance, while protecting the freedoms of religion and expression. The program assists governments in training local officials on cultural awareness regarding religious minorities and on enforcing non-discrimination laws.....

... U.S. officials press foreign governments at all levels to advance religious freedom, including through advocacy on specific cases, such as the case of Saeed Abedini - an Iranian-American pastor imprisoned in Iran - and Rimsha Masih - a Christian child accused of blasphemy in Pakistan.

...[T]he United States has developed a strategy that encourages U.S. government officials to develop and deepen their relationships with religious leaders and faith communities as they carry out their foreign policy responsibilities....

White House Hosts Two Hanukkah Receptions As the Holiday Ends

As Hanukkah was ending yesterday late afternoon and evening, President Obama hosted two separate Hanukkah receptions at the White House. The White House has posted the full text of the President's remarks at the first of the receptions, many of which focused on the unusual overlap of Thanksgiving and Hanukkah. Navy lieutenant Rabbi Amanda Lurer gave a rather tactful introduction to her lighting of the Hanukkah menorah-- a day later than the last candle was to be lit according to Jewish law. She said:

Hanukkah formally ends tonight as the sun goes down this evening. But it will always be appropriate for us as we gather to remind ourselves and the world of the meaning of this holiday.

She also recited only two of the three traditional blessings over the Hanukkah candles, omitting the one praising God for commanding the lighting of Hanukkah candles-- since there is no commandment they be lit at the holiday's end.

UPATE: The White House has now posted the full text of the President's remarks to the second of the Hanukkah receptions. This one was attended by three Supreme Court justices, members of Congress, Israeli diplomats and others. The President's remarks were more substantive, weaving a defense of his Iran policy and a tribute to Nelson Mandela into a Hanukkah theme. At this reception, Hanukkah candles were lit by Rabbi Joshua Sherwin, a lieutenant in the United States Navy, who recited only one of the three blessings that are used during the holiday itself-- the shehecheyanu.

Britain's Court of Appeal Says Religious Discrimination Can Involve Failure To Accommodate Belief Held By Only Some Christians

In Mba v. Mayor and Burgesses of the London Borough of Merton, (EWCA, Dec. 5, 2013), Britain's Court of Appeal held that under the Employment Equality (Religion or Belief) Regulations 2003, indirect religious discrimination (i.e. discrimination based on disparate impact of a work rule) can be shown even when the religious belief impacted is held only by some of the members of a religious group. However it concluded that the Employment Tribunal below, while proceeding in part on an erroneous view of the law, still reached the correct result in rejecting the employee's discrimination claim.

At issue was a claim by a Christian care assistant at a municipally operated children's home that the Borough had failed to adequately accommodate her religious belief that she should not work on Sundays. Under the Equality Regulations, a defense to the indirect discrimination claim is a showing that the work rule was "a proportionate means of achieving a legitimate aim." The Court held that the Employment Tribunal below, in assessing proportionality, had incorrectly considered it relevant that abstaining from work on Sunday is not a core component of the more general Christian faith. The 3 judges disagreed on the extent to which provisions of the European Convention on Human Rights should impact their interpretation of British regulation at issue. They all agreed that other factors made the refusal to accommodate a proportionate response. UK Human Rights Blog and Christian Concern both report on the case. [Thanks to Alliance Alert for the lead.]

Thursday, December 05, 2013

On Religion and Apartheid-- As World Mourns Nelson Mandela

In South Africa, former president Nelson Mandela died today. The New York Times chronicles his life in an article titled Nelson Mandela, South Africa’s Liberator as Prisoner and President, Dies at 95. His death is an appropriate time to look back on the historical role of religion and religious groups in South Africa during the Apartheid era. The following are particularly rich sources for exploring the issue:

In 1998, the University of Cape Town's Research Institute on Christianity In South Africa prepared a report for the Truth and Reconciliation Commission titled Faith Communities and Apartheid:
Chapter 1: Why faith community hearings?
Chapter 2: Faith Communities
Chapter 3: An account of the submissions
Chapter 4: The Road to Reconciliation
Chapter 5: Reflections on the process and recommendations for the future
Chapter 6: Conclusion

TRC Faith Community Hearings: Submissions Received

The post-apartheid government's Truth and Reconciliation Commission issued its Report which it presented to President Nelson Mandela in October 1998:

Truth and Reconciliation Commission of South Africa Report- Volume 4 (Chapter 3 on Faith Communities is at pp. 59-92).

The Truth and Reconciliation Commission made the following findings in Volume 5 of its report, at pp. 251-52:

Faith communities

The Commission finds that Christianity, as the dominant religion in South Africa, promoted the ideology of Apartheid in a range of different ways that included Biblical and theological teaching in support of Apartheid; ecclesiastical Apartheid by appointing ministers to congregations based on race, and the payment of unequal stipends; a failure to support dissident clergy who found themselves in confrontation with the state; and a failure to provide economic support to those most severely affected by Apartheid.

The failure of religious communities to give adequate expression to the ethical teaching of their respective traditions, all of which stand in direct contradiction to Apartheid, contributed to a climate within which Apartheid was able to survive. The failure of the churches in this regard contributed to the perpetuation of the myth, prevalent in certain circles, that Apartheid was both a moral and Christian initiative in a hostile and ungodly world.

Chaplains provided by the churches to serve the military, the police and other uniformed services, wore the uniforms of these services, enjoyed the rank of armed personnel, and some carried sidearms. They were part of the illegal cross-border activities carried out by the military, and they accompanied troops into the townships and other internal situations of conflict on occasion. The were seen to be supportive of the offensive structures of the former state. Churches must therefore accept moral accountability for providing religious sanction and theological legitimisation for many actions of the armed forces.

It is the finding of the Commission that religious proselytising and religious-based nationalism have not only sown the seeds of inter-religious suspicion, distrust and strife, but they have also contributed directly to religiously inspired conflict. Religious communities must take responsibility for the actions of their followers in this regard.

District Court Issues Preliminary Injunction To Await SCOTUS Contraceptive Mandate Decision

In Randy Reed Automotive Inc. v. Sebelius, (WD MO, Dec. 3, 2013), a Missouri federal district court, with agreement of both parties, issued a preliminary injunction in a small business RFRA challenge to the Affordable Care Act contraceptive coverage mandate. The injunction is effective until 30 days after the U.S. Supreme Court issues its ruling in the Hobby Lobby and Conestoga cases in which it recently granted certiorari to decide similar challenges. The complaint (full text) in Randy Reed Automotive, a challenge by several Missouri automotive dealerships and their Christian owner, was originally filed on Oct. 18, 2013. Kansas City Business Journal reports on the district court's ruling.

Preliminary Injunction Denied In Challenge To Elementary School Graduation At Christian College

A South Carolina federal district court on Tuesday denied a preliminary injunction in American Humanist Association v. Greenville County School District. The lawsuit challenges on Establishment Clause grounds the practice of holding graduation for a Taylors, South Carolina elementary school in the chapel of North Greenville University, a Christian college. (See prior posting.) The ruling came in response to a motion to bar the Greenville school district, pending final resolution of the case, from permitting prayers as part of any school-sponsored event, including graduation ceremonies, and from holding school-sponsored events in churches, chapels and other places of worship. The State reported on the judge's ruling from the bench:

Senior U.S. District Judge G. Ross Anderson Jr., at a court hearing, said the American Humanist Association’s allegations against the Greenville County school district lacked proof and were "making a mountain out of a mole hill."

The judge also told an attorney for the association that "with all due respect and apologies" he had never heard of the Washington, D.C.-based nonprofit, founded in 1941.

Anderson called the association’s charges against the school district bold "and disturbing."

2013 Capitol Christmas Tree Lit In Ceremony

On Tuesday, House Speaker John Boehner hosted the ceremony to light the 88-foot tall 2013 Capitol Christmas Tree. As reported on the U.S. Department of Agriculture blog, this year's tree was harvested from Colville National Forest in Washington state and is decorated with fish-shaped ornaments, birds and stars made by people in Washington state designed to reflect the 2013 theme, "Sharing Washington’s Good Nature." AP reports on the ceremony:

House Speaker John Boehner flipped the switch that lit the Capitol Christmas Tree, helped by the six-year-old son of an Iraq war veteran.

Washington Congressman Jim McDermott said Christmas is about a "child that came into the world and changed the world." He added, "I hope this tree will remind us of Jesus' call to feed the hungry, to welcome the stranger, to clothe the naked and to take care of the sick."

The U.S. Marine Band played "O Come all ye Faithful," ''Joy to the World," ''O Holy Night" and other Christmas hymns.

Wednesday, December 04, 2013

Egypt's New Draft Constitution Heading Toward Referendum, Including Provisions On Religion

Egypt's Daily News reports that yesterday, the Chairman of the Committee of 50 that has been drafting a new Egyptian constitution transmitted its final draft to interim President Adly Mansour. The Jerusalem Post reports that President Mansour is expected to approve the draft and call for a referendum on it to be held in January. The full text of the draft constitution has been published in Arabic, however it does not appear that an English translation of the full document is yet publicly available. Egypt Source however has published an extensive analysis of the document (Part 1, Part 2) written by Mai El-Sadany, a law student at Georgetown University. Part 1 includes an analysis of the treatment of religion in the new document. Here are some edited excerpts, but the full analysis is well worth reading:

In the current Constitutional draft, Article 2 remains as is, both defining Islam as the religion of the state and stating that the principles of Sharia are “the primary source of legislation.” Article 219 of the 2012 Constitution [defining the term "principles of Sharia] has been completely removed.... Article 3 ... states that Jewish and Christian law will govern the affairs of Jewish and Christian Egyptians in issues of personal status, religious matters, and the selection of spiritual leadership. Finally, Article 7 discussing the role of Al-Azhar, defines it as the “primary reference for the religious sciences and Islamic matters,” and emphasizes the independence of its head; however, the article does not assign the institution a specific role in the State....

... Article 64 sets forth freedom of belief as absolute. The Article, however, states that the law will set forth the right to establish places of worship and the right to practice religious rites for only “the divine religions.” Thus, while the state technically recognizes an absolute freedom of religion and freedom of thought in Article 65, it will only allow the establishment of houses of worship and the litigation of personal status issues based on either an Islamic, Christian, or Jewish identity. A transitional Article 235 also states that a law will be established to facilitate the building and renovation of churches.

Finally, as per Article 74, no political parties are to be established based on religious principles; a similar provision was included in the 1971 Constitution but was removed in texts since, allowing for organizations like the Freedom and Justice Party to be established....

In the current Constitutional draft, Article 1... notes that Egypt is a part of the Islamic world, has ties to the African continent.....

In a new development, the current draft’s Preamble touches heavily on Egypt’s identity, laying out the country’s Islamic and Christian histories.... The Preamble is also colored with lofty rhetoric ... discussing among other things, the role of Sharia, the importance of human rights, and the necessity for equality. The reference to Sharia is thought to have been included to assuage some members’ fears on secularism....

Towns, Schools In Quebec Oppose Proposed Secular Charter

According to CBC News yesterday, universities, school boards and municipalities in Quebec are increasingly saying they will refuse to enforce Quebec's Bill 60, the province's proposed charter of secularism (see prior posting) if it is adopted by the National Assembly. On Monday, the Town Council of the Montreal suburb of Hampstead passed a strong resolution (full text in linked CBC News article) declaring in part:

...The separation of church and state should not ... be confused with the persecution of religion by the state....

[W]e reject the notion that people who believe in a deity are somehow lesser citizens. We reject the notion that wearing an identifiable religious symbol that does not physically impede a person from performing his/her duties, is a basis for discrimination;

... [S]hould this Charter, or any variation which violates the Quebec Charter of Human Rights and Freedoms or the Canadian Charter of Rights and Freedoms. be passed by the National Assembly, the Town of Hampstead will not recognize it as a valid law. We will not comply. We will not be complicit with hatred, racism and intolerance.

Religious Non-Profits Continue To File Suits Challenging Contraceptive Coverage Mandate Accommodation

Suits continue to be filed, or re-filed, by religious non-profits challenging the Obama administration's final rules creating an accommodation in the application of the Affordable Care Act contraceptive coverage mandate to them. The latest suits are:

Fellowship of Catholic University Students v. Sebelius, (D CO, filed 12/3/2013) (full text of complaint) (ADF press release).
University of Notre Dame v. Sebelius, (ND IN, filed 12/3/2013) (full text of complaint) (Notre Dame press release).

Tuesday, December 03, 2013

ACLU Sues Catholic Bishops For Negligence Over Hospital Guidelines That Bar Abortions In All Situations

The ACLU announced yesterday that it has filed a federal lawsuit against the U.S.Conference of Catholic Bishops and the chair and former chair of Catholic Health Ministries on behalf of a woman who was not informed by a Catholic hospital in Muskegon, Michigan of the option to terminate her pregnancy when her water broke after 18 weeks of pregnancy. The complaint (full text) in Means v. U.S. Conference of Catholic Bishops, (ED MI, filed 11/29/2013), alleges negligence "for promulgating and implementing directives that cause pregnant women who are suffering from a miscarriage to be denied appropriate medical care, including information about their condition and treatment options." The suit, which does not name the Michigan hospital itself a a defendant, was brought in federal court on diversity of citizenship grounds. It complains that the USCCB's Ethical and Religious Directives for Catholic Health Care Services, which provide that abortion is never permitted, are required to be applied even when doing so places a woman's health or life at risk. The New York Times reports on the case. [Thanks to Scott Mange for the lead.]

Court Orders Minnesota Dioceses To Release Information On Credibly Accused Priests

A Minnesota state trial court judge yesterday ordered release by the Catholic Archdiocese of St. Paul and Minneapolis of the names and information on 33 priests credibly accused of child sexual abuse. He also ordered the Diocese of Winona to release the names and information on 13 other similarly accused priests. AP reports that the information, including current status and residence for those still alive, must be released by Dec. 17. The Archdiocese says it will release the information on its website on Dec. 5. It added that most of the names that will be released have already been identified by the media, and all that are still alive have been permanently removed from ministry. The names will be those compiled in 2004. The Church has until Jan. 6 to release information of priests accused since that time.

Idaho Supreme Court: Mormon Church Owed No Special Duty To Child Injured At Church Organized Camp Out

In Beers v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (ID Sup. Ct., Nov. 26, 2013), the Idaho Supreme Court held that neither the Mormon Church nor various individual Ward members are liable for broken ankle suffered by a 13-year old girl in jumping from a bridge during a camp out organized by Ward members of the Church. The court held that there was no special relationship between the Church ("COP") or Ward members and the teenager ("Heidi") that imposed a duty of care to prevent foreseeable injury to the teen. As to the Church's duty, the Court said:

We are unable to ascribe moral blame to the COP for this incident. We can, however, ascertain negative consequences to the community that would result from imposing a duty and resulting liability upon religious organizations to members of their faith. The result would be a powerful disincentive to organized fellowship activities. Thus, we decline to extend or create a new duty on the part of the COP toward Heidi.

AP reports on the decision.

Suit Challenges School Ban On Student Distribution of Religious Material

In Kansas last week, a federal lawsuit was filed challenging school district rules that permit students to post information and hand out flyers during non-instructional time, except for religious material. The complaint (full text) in K.R. v. Unified School District No. 34,(D KS, filed 11/26/2013), alleges that plaintiff, a 7th grader, was prevented by the policy from distributing flyers promoting a "See You At The Pole" prayer event, in violation of her 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

Monday, December 02, 2013

Cert. Denied In Broad Religious Rights Challenge To Provisions of the Affordable Care Act

The U.S. Supreme Court today denied certiorari in Liberty University v. Lew, (Docket No. 13-306, cert. denied 12/2/2013). (Order List.) 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 various other provisions of the Act. Plaintiffs claimed that both the employer mandate and the individual mandate imposed support of abortions, and that certain religious exemptions in the statute violate the Establishment Clause. In the case, the 4th Circuit also refused to allow plaintiffs to belatedly add claims regarding the contraceptive coverage mandate. (See prior posting.) [Thanks to SCOTUSblog for the lead.]

Pro-Marriage Equality Protesters Fined One Cent For Trespassing

The Louisville (KY) Courier-Journal reported last week on the trial of a same-sex couple-- Dominique James and the Rev. Maurice “Bojangles” Blanchard-- for criminal trespass after they refused to leave the Jefferson County Clerk of Court's office at its closing time in protest of being denied a marriage license. The couple insisted that they were "spiritually obligated" to stay. The jury last Tuesday convicted the defendants, but imposed a fine of only one cent. The maximum fine could have been $250. Blanchard called the verdict a vindication of their protest. The couple had rejected a plea agreement under which charges would have been dismissed in exchange for their each working 5 hours at a charity of their choice. [Thanks to Tom Rutledge for the lead.]

Croatians Approve Constitutional Amendment Barring Same-Sex Marriage

In Croatia yesterday, voters authorized a constitutional amendment to bar same-sex marriage. AP reports that with nearly all the votes counted, the state electoral commission said that 65% of those voting answered "yes" to the question: "Do you agree that marriage is matrimony between a man and a woman?" 34% voted "no". The amendment was strongly backed by the Catholic Church in the heavily Catholic nation. Croatia became the 28th member of the European Union in July. Croatia’s liberal president, Ivo Josipovic, said that the government, however, will propose legislation granting some rights short of marriage to gays and lesbians living together. It was a government proposal to allow same-sex couples to register as "life partners" that initially triggered a call for the referendum by the conservative group "In the Name of the Family." Jurist has additional background on the referendum.

Recent Articles and Books of Interest

From SSRN:

Ashutosh Avinash Bhagwat, Religious Associations: Hosanna-Tabor and the Instrumental Value of Religious Groups, (November 26, 2013).
Evelyn M. Tenenbaum, The Union of Contraceptive Services and the Affordable Care Act Gives Birth to First Amendment Concerns, (Albany Law Journal of Science and Technology, Vol. 23, No. 3, p. 539, 2013).
Frederick Mark Gedicks & Pasquale Annicchino, Lautsi v. Italy: English Translations of Italian Trial and Appellate Decisions, (November 17, 2013).
Frederick Mark Gedicks & Pasquale Annicchino, Cross, Crucifix, Culture: An Approach to the Constitutional Meaning of Religious Symbols, (November 17, 2013).
Richard F. Duncan, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, (Texas Review of Law & Politics, Forthcoming).
Paul Croushore, Not Getting Too Far Out in Front: The Supreme Court Decisions on Same-Sex Marriage, (November 25, 2013).
Roger Colinvaux, Rationale and Changing the Charitable Deduction, (Tax Notes, Vol. 138, No. 1453, 2013).
Agustín Elias Casagrande , Los Hijos de Belial. Paradigma religioso y criminalidad en el Río de la Plata hacia fines del siglo XVIII. (The Sons of Belial. Religious Paradigm and Criminality in the Río De La Plata in the Lateness of XVIII Century), (Max Planck Institute for European Legal History Research Paper Series No. 2013-08, 2013).

From SmartCILP:

Nathan S. Chapman, Disentangling Conscience and Religion, 2013 University of Illinois Law Review 1457-1501.
David Hollander, Resources To Begin the Study of Jewish Law In Conservative Judaism, 105 Law Library Journal 305-320 (2013).
Priti Nemani, Piercing Politics: Religious Garb and Secularism In Public Schools, 20 Asian American Law Journal 53-82 (2013).
The Arab Spring. Articles by George E. Bisharat, Omar M. Dajani, Intisar Rabb and M. Cherif Bassiouni. 17 UCLA Journal of International Law & Foreign Affairs 1-174 (2013).

Recent Books:

Ronald Dworkin, Religion Without God, (Harvard University Press, Oct. 4, 2013), reviewed by The Guardian.
Peter Gardella, American Civil Religion: What Americans Hold Sacred, (Oxford Univ. Press, Dec. 18, 2013).

Sunday, December 01, 2013

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.

Saturday, November 30, 2013

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.

Friday, November 29, 2013

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.

Thursday, November 28, 2013

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.

Wednesday, November 27, 2013

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.

Tuesday, November 26, 2013

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.

Monday, November 25, 2013

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).