Final Version of Defense Authorization Bill Contains Military Religious Freedom Provisions

The House of Representatives yesterday passed H Res. 441 concurring in the Senate Amendments to the 2014 Defense Authorization Bill, H.R. 3304, (with one minor amendment so that it must still go back to the Senate for final approval). (Full text of resolution and bill.) As is typical with military authorization and spending bills, this one contains several provisions on religious freedom in the military.

Section 532 tweaks the language in current law on conscience rights of those in the military, so that the new provision (new language in italics) reads:

Unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline, the Armed Forces shall accommodate individual expressions of belief of a member of the armed forces reflecting the sincerely held conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such expressions of belief as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

The section also sets a 90-day deadline for issuance of regulations implementing this section, and requires the Pentagon to consult with faith-group representatives who endorse military chaplains in drafting the regulations.

Section 533 then requires a DOD Inspector General's report 18 months later on Armed Forces compliance with the ban on adverse personnel action based on conscience, moral principles or religious beliefs. The IG is to consult with the Armed Forces Chaplain Board as appropriate in preparing the report.

Section 534 requires that within one year:

The Secretary of Defense shall conduct a survey among a statistically valid sample of military chaplains of the regular and reserve components of the Armed Forces, to be selected at random, to assess whether—

(1) restrictions placed on prayers offered in a public or non-religious setting have prevented military chaplains from exercising the tenets of their faith as prescribed by their endorsing faith group; and 

(2) those restrictions have had an adverse impact on the ability of military chaplains to fulfill their duties to minister to members of the Armed Forces and their dependents.

The Joint Explanatory Statement (at pp. 63-65) explains the House-Senate compromises that led to these provisions. The Statement also contains the following language (pg. 82) that appears to be a response to criticism by some conservative Christian groups (background) that the military has given preferential access in policy making to the Military Religious Freedom Foundation:

The House bill contained a provision (sec. 530E) that would require the Department of Defense to provide to the Committees on Armed Services of the Senate and the House of Representatives advance written notice of any meeting held between Department employees and civilians for the purpose of writing, revising, implementing, enforcing, or seeking advice, input, or counsel regarding military policy related to religious liberty.

The Senate committee-reported bill contained no similar provision.

 The agreement does not include this provision.

We believe the Department and the military services should proactively reach out to and meet with religious groups of all faiths when formulating and revising policies that impact religious freedom and tolerance within the military. We are becoming increasingly concerned over reports that the Department and the services appear more responsive to some religious groups and interests than others. The Department and the services must be proactive in their efforts to overcome this perception and to ensure the fairness and equity of policies and regulations that address the religious liberty of service members and their families.

Sex Abuse Plaintiff Identifies Himself In Lawsuit Against Chicago Archdiocese

In Chicago, numerous sex abuse victims of former Catholic priest Daniel McCormack  have filed "John Doe" lawsuits, and the Chicago archdiocese has settled many of them.  Yesterday's Chicago Tribune reports that the first case against McCormack in which the victim has identified himself was filed Wednesday.  Plaintiff, 27-year old Darryl McArthur, who like all of McCormack's victims is African-American, says he took this step to combat "the culture of secrecy" surrounding sexual abuse in the African-American community. McArthur has agreed to try to settle the lawsuit through a mediation arrangement that has resolved 20 other claims against the Chicago Archdiocese.  Meanwhile, the accused former priest remains in a mental health facility while a judge considers whether to commit him indefinitely as a sexually violent offender.

Appeal In Ontario Court Seeks To Enforce Quebec Foster Care Order Against Alleged Jewish Religious Cult

As previously reported, last month the insular Orthodox Jewish sect Lev Tahor fled the Canadian province of Quebec and moved to Chatham-Kent, Ontario to avoid Quebec child welfare officials.  Some charge that Lev Tahor is a religious cult under control of its leader Rabbi Shlomo Helbrans. Now the Toronto Star reports that on Dec. 4, Chatham-Kent Children’s Services asked a Justice of the Peace for a warrant that would let them carry out a Quebec court order to place 14 Lev Tahor children in foster care under the guidance of Quebec child-welfare authorities. Quebec claims neglect, psychological abuse, poor nutrition, health problems and home schooling that fails to meet provincial standards.  The Ontario Justice of the Peace rejected the application for the warrant on Dec. 7, and Ontario authorities have filed an appeal.  A brief hearing on the appeal was held Wednesday, with a full hearing scheduled for Dec. 23. Meanwhile Lev Tahor will appeal the Quebec court ruling that first ordered the children into foster care even though they had been moved to Ontario.

EU Directive Requires Companies To Give Same Benefits to Civil Partners Where Same-Sex Marriage Is Unavailable

In Hay v. Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres, (Eur. Ct. Jus. 5th Chamber, Dec. 12, 2013), the 5th Chamber of the European Court of Justice held that under Council Directive 2000/78/EC that creates a framework for equal treatment in employment, it amounts to direct discrimination for a French firm to deny a same-sex couple entering a civil partnership the same benefits given couples being married. The court concluded that:

an employee who concludes a PACS [civil solidarity pact] with a person of the same sex [must be] allowed to obtain the same benefits, such as days of special leave and a salary bonus, as those granted to employees on the occasion of their marriage, where the national rules of the Member State concerned do not allow persons of the same sex to marry, in so far as, in the light of the objective of and the conditions relating to the grant of those benefits, that employee is in a comparable situation to an employee who marries.

Art Leonard Observations has analysis of the decision. [Thanks to Alliance Alert for the lead.]

Taxpayer Suit Challenges North Carolina School Voucher Program

This week some 25 North Carolina taxpayers filed a state court lawsuit challenging the constitutionality of the state's new voucher program for students attending private schools, including religiously sponsored schools. The complaint (full text) in Hart v. State of North Carolina, (Super. Ct., filed 12/11/2013), alleges that the voucher program violates provisions of the North Carolina constitution calling for a uniform system of free public schools. North Carolina Justice Center's website and the website of the North Carolina Association of Educators have additional information on the lawsuit.  AP's coverage of the lawsuit has additional background on the voucher program.

Foundation Buys Native American Items At Auction To Return Them To Tribes

As previously reported, last week a French court refused to stop a Paris auction house from selling 25 sacred Native American objects, despite objections from the American Embassy.  It was known that one of the sacred masks was purchased by the Hopi's French lawyer who intends to return it to the tribe. Now it turns out that the other items will also go back to the tribes who claim them. In a press release this week, the Annenberg Foundation announced that it purchased the remaining 24 sacred artifacts at the auction for a total of $530,000 "for the sole purpose of returning them to their rightful owners. Twenty-one of these items will be returned to the Hopi Nation in Arizona, and three artifacts belonging to the San Carlos Apache will be returned to the Apache tribe." KUOW News has more on the story.

James Dobson's Family Talk Sues Over Contraceptive Coverage Mandate

This week another religious non-profit filed a challenge to the Affordable Care Act contraceptive coverage mandate.  The complaint (full text) in Dobson v. Sebelius, (D CO, filed 12/10/2013), seeks an injunction to prevent enforcement of the mandate against Family Talk, its founder James Dobson, and the third party administrators of its health insurance plans. The suit alleges:

Based on the Bible’s religious and moral teachings, Plaintiffs sincerely believe that the termination of the life of a preborn child by, among other means, abortion-inducing drugs and devices, and related education and counseling, including by means of acting after fertilization to prevent the newly formed embryo from implanting into his or her mother’s uterus, is an intrinsic evil and a sin against God for which Plaintiffs will be held accountable.

ADF issued a press release announcing the filing of the lawsuit.

India's Supreme Court Reverses Lower Court's Invalidation of Ban On Homosexual Acts

In Koushal v. NAZ Foundation, (Sup. Ct. India, Dec. 11, 2013), a 2-judge panel of India's Supreme Court reversed a lower court ruling that had held unconstitutional Section 377 of the Indian Penal Code insofar as it bans homosexual sexual acts in private between consenting adults. (See prior posting.) Rejecting the lower court's holding that the statute violated constitutional provisions on equal protection and non-discrimination, Justice Singhvi wrote:

Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.

The Supreme Court also rejected the lower court's holding that the statute infringes the substantive due process right to privacy:

In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

Responding to the argument that police have misused the law, the Supreme Court said:

Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on ... those belonging to the LGBT community.  [T]he mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC.

Times of India reports on the decision. 

Britain's Supreme Court Holds Scientology Chapel Is Place of "Religious Worship" Where Marriages May Be Solemnized

In R (on the application of Hodkin and another) .v Registrar General of Births, Deaths and Marriages, (UK Sup. Ct,, Dec. 11, 2013), Britain's Supreme Court overruled a 1970 Court of Appeal case and held that a chapel of the Church of Scientology qualifies under the Places of Worship Registration Act 1855 as "a place of meeting for religious worship." Therefore the Registrar General should have recorded it as a place at which marriages may be solemnized under the Marriage Act 1949.  In so holding,  Lord Toulson wrote:

... [R]eligion should not be confined to religions which recognise a supreme deity. First and foremost, to do so would be a form of religious discrimination unacceptable in today’s society. It would exclude Buddhism, along with other faiths such as Jainism, Taoism, Theosophy and part of Hinduism.... 

For the purposes of PWRA, I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science.... Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.

The court went on to hold that the Scientology chapel is a place of meeting for religious "worship," concluding that it is sufficient that the location is one where members perform religious rites, whether or not the rites involve adoration of a deity:

fine theological or liturgical niceties as to how precisely they see and express their relationship with the infinite ... are more fitting for theologians than for the Registrar General or the courts. 

Lord Wilson wrote a separate concurring opinion, joined by 3 other justices holding that the Registrar General's role in registering houses of worship is more than ministerial. The court also issued a press summary of the decision.  Time reports that the decision may have broad ramifications.  (See prior related posting.)

Nativity Scene On Air Base Creates Controversy

The annual flare up over religious displays on public property at Christmas time appears to have moved this year to military bases. AP reports that at Shaw Air Force base in South Carolina last Friday, a group of volunteers from the base chapel set up a nativity display near a small lake where a tree lighting ceremony was scheduled for Friday evening.  The Military Religious Freedom Foundation, a church-state watchdog, lodged a complaint with the Pentagon and officials ordered the display taken down because it reflects only one religious tradition.  God and Country blog details some of the negative reaction to the removal of the display.

House Hearing Focuses On Human Rights Concerns of Copts In Egypt.

Yesterday two subcommittees of the U.S. House Foreign Affairs Committee held a joint hearing on Human Rights Abuses in Egypt. Taking place on Human Rights Day, the hearing focused particularly on the plight of the Coptic Christian minority in Egypt.  Video of the hearings and the full text of prepared statements by the five witnesses who testified are available on the Committee's website.

Controversy Over U.S. Commitment To Return Collection of Jewish Documents To Iraq

Religion News Service reported yesterday on the growing controversy over what the United States should do with a trove of Jewish documents, books and scrolls found in 2003 by U.S. troops in Iraq.  The items (now known as the Iraqi Jewish Archive) were discovered in the flooded basement of Saddam Hussein’s Baghdad intelligence headquarters.  They were rescued and taken back to the United States for preservation and restoration pursuant to an August 2003 Agreement (full text) between the Coalition Provisional Authority and the National Archives. That Agreement called for the return of physical custody of the documents to the Coalition Provisional Authority or its designee once preservation work was completed and a public exhibition of the collection was held. (Art. I, Par. 4).  A 2011 agreement between the State Department and the National Archives (full text) indicates that the Coalition Provisional Authority designated the Iraqi Ministry of Culture as the agency responsible for the documents.

The State Department says these agreements call for the U.S. to return the collection (some of which are now on display in the National Archives Building in Washington) to Iraq in the Summer of 2014.  Groups in the Jewish community and members of Congress are questioning the State Department's plans.  A website set up by groups representing Middle Eastern and North African Jews argues:

There is no justification, nor logic, in sending these Jewish archives back to Iraq, a place that has virtually no Jews, no interest in Jewish heritage and no accessibility to Jewish scholars or the descendants of those who once possessed them.

A bi-partisan letter to Secretary of State Kerry (full text) signed by 47 members of Congress last month argues that the collection should be returned to the descendants of the Iraqi Jewish community outside of Iraq.  It is estimated that there are only 5 Jews left in Iraq today.

Court Orders Florida Prisons To Provide Kosher Diet Alternative

In an important prisoner free exercise decision last week, a federal district court granted a preliminary injunction ordering the Florida Department of Corrections to provide a kosher diet by July 1 to all prisoners with a sincere religious basis for keeping kosher.  The decision comes in what appears to be the first Justice Department suit directly against a state for violation of the prisoner provisions of the Religious Land Use and Institutionalized Persons Act. In United States v. Secretary, Florida Department of Corrections, (SD FL, Dec. 6, 2013), the court held that the United States was likely to prevail on the merits of its claim that Florida's religious diet policy violates RLUIPA.

The court held that Florida had not shown a compelling interest in a blanket denial of kosher food to prisoners-- in part because the state argued somewhat inconsistently that it was committed to providing kosher meals to all eligible inmates. The court also rejected Florida's argument that it had a compelling interest based on cost savings, saying:

While cost control may be a compelling interest in certain situations ... RLUIPA expressly contemplates that facilitating religious exercise "may require a government to incur expenses in its own operations.''.... The costs initially identifed by Defendants in this litigation are not of a compelling magnitude.... Even if participation were ... 1,000 prisoners per day - the cost would only be $2.12 million per year, or .001 of FDOC'S budget. No compelling interest is furthered by avoiding such a relatively minor expense....

The court additionally held invalid several provisions in a proposed religious diet program that the state had developed while the litigation was pending.  These include conditioning eligibility on clergy interpretations of religious doctrine or on prisoners' knowledge of religious law; summary suspension of prisoners from the program if they consume any item not listed as kosher; and removal from the program of prisoners who eat less than 90% of available meals, even if they consume only kosher food.  (See prior related posting.) [Thanks to Luke Goodrich for the lead.]

Millett, Who Helped Author Important RFRA Brief, Confirmed For D.C. Circuit

As reported by the Washington Post, the U.S. Senate today, by a vote of 56-38, confirmed Patricia Millett to serve on the U.S. Court of Appeals for the D.C. Circuit.  Millett served as an Assistant to the Solicitor General at the U.S. Department of Justice from 1996-2007.  While serving in that role, she was one of the attorneys who wrote the U.S. government's brief in City of Boerne v. Flores, 1997 U.S. S. Ct. Briefs LEXIS 185, arguing unsuccessfully that the provisions of the Religious Freedom Restoration Act that applied to state governments represented a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment.

Security Guard Pleads Guilty to Federal Charges of Defacing Religious Objects

The U.S. Attorney's Office for the Western District of Tennessee announced that 25-year old Justin Baker yesterday pleaded guilty to violating the civil rights of students and faculty of the Margolin Hebrew Academy.  Baker, a security guard at a Jackson (TN) hotel, defaced a Torah and prayer books left in a hotel meeting room by students after they used the room to conduct a Sabbath service:

Baker admitted that while employed as a security guard at the hotel, he discovered the items in the room, and defaced the Torah, the prayer books, and the musical instruments with profanity, anti-Semitic phrases, and Satanic writing. He also admitted to spitting on the Torah. Photographic evidence presented during the hearing confirmed that the Torah was defaced with profanity and phrases including "Hail Satan."

Suit Seeks Release of Files of Former Duluth Priests Accused of Abuse

According to the Duluth News Tribune, a Minnesota state court lawsuit was filed yesterday against the Catholic Diocese of Duluth on behalf of a John Doe plaintiff who says he was abused in the 1970's by Father Robert Klein, now deceased. A statement by the Diocese in response to the filing of the lawsuit says that there are several publicly known substantiated allegations against Klein, but the allegations in the lawsuit are new. The lawsuit claims that the Diocese was negligent in allowing sexual abuse to continue, and that it has created a nuisance by not releasing information about accused priests. The suit asks for release of the names and files of 17 former priests who were identified in a 2004 report as having credible allegations against them. The Diocese says that the 2004 list is imperfect, and that no priests with known accusations of sexual abuse of minors are active in the ministry in the Diocese.

Festivus Beer Can Pole Will Share Florida Capitol Rotunda With Nativity Display

In Florida, the state's Department of Management Services allows private individuals and groups to set up temporary displays in the Capitol building, so long as they go through an application process and meet certain guidelines.  The Orlando Sentinel reported yesterday that the Department has approved an application by an ACLU member to set up a 6-foot tall "Festivus" pole made from empty beer cans in the Capitol rotunda where display of a nativity scene has already been approved.  The Department of Management Services website lists the many different displays that have been approved currently and for the coming months. They include a Free Thought banner already set up by the Freedom From Religion Foundation. Pam Olsen, president of the Florida Prayer Network, said of the display honoring the Seinfeld- created Festivus holiday: "[T]hey have a right to exercise freedom of speech, that's what America is about. It doesn't faze me, it doesn't faze the God I serve." [Thanks to Eduardo Penalver via Religionlaw for the lead.]

Polish Appellate Court Refuses To Order Removal of Cross Hanging In Parliament

In Poland yesterday, the Court of Appeal in Warsaw dismissed a suit by members of Your Movement party, a liberal Polish political party, seeking to have a cross which hangs in the Plenary Hall of the Sejm (lower house of Parliament) removed. Polskie Radio reports that challengers, invoking both the Polish constitution and EU directives, argued that that the presence of the cross violates their rights to freedom of conscience and religion.  In rejecting their challenge, the court said: "The cross is a religious symbol, but its importance as a symbol of national identity and culture cannot be ignored." The court's press release on the decision (in Polish) is available online. The head of Your Movement says that they will appeal the decision to the European Court of Human Rights. (See prior related posting.)

Report On Treatment Of Non-Believers Released For Human Rights Day

Today is United Nations Human Rights Day. To mark the day, the International Humanist and Ethical Union issued a report Freedom of Thought 2013: A Global Report on the Rights, Legal Status, and Discrimination Against Humanists, Atheists, and the Non-Religious. (Full text.) Here is an excerpt from the Introduction to the 244-page report:

Freedom of Thought 2013 is the first report to look at the rights and treatment of the non-religious in every country in the world. Specifically, it looks at how non-religious individuals—whether they call themselves atheists, or agnostics, or humanists, or freethinkers or are otherwise just simply not religious—are treated because of their lack of religion or absence of belief in a god. We focus on discrimination by state authorities; that is systemic, legal or official forms of discrimination and restrictions on freedom of thought, belief and expression.....

Our results show that the overwhelming majority of countries fail to respect the rights of atheists and freethinkers. There are laws that deny atheists’ right to exist, revoke their right to citizenship, restrict their right to marry, obstruct their access to public education, prohibit them from holding public office, prevent them from working for the state, criminalize their criticism of religion, and execute them for leaving the religion of their parents. In the worst cases, the state denies the rights of atheists to exist, or seeks total control over their beliefs and actions.

Reuters reports on the study.

White House Holiday Page Now Up On Its Website

The White House has launched its 2013 Holiday Page on its website. It includes videos of White House holiday events, suggestions for crafts projects, and social media postings from White House guests about their holiday experiences. The White House is also featuring an invitation for those who interact with it regularly on Twitter, Instagram and Pinterest to register for a chance to attend an in-person White House Holiday Social on Dec. 16.

Satanists Propose Monument On Oklahoma Capitol Grounds

In 2009, the Oklahoma legislature approved the display of a privately financed Ten Commandments monument on the State Capitol grounds. (See prior posting.) Now the New York-based Satanic Temple has notified the Oklahoma State Capitol Preservation Commission that it also wants to donate a monument for the Capitol grounds. AP reported  yesterday that the Satanic Temple says its monument will be "in good taste and consistent with community standards." It will pay "homage to the historic/literary Satan."   [Thanks to Joel Sogol via Religionlaw for the lead.]

UPDATE: Others seem to have similar ideas.  In a Dec. 10 press release, the Universal Society of Hinduism said it plans to apply to Oklahoma State Capitol Preservation Commission for permission to place a statue of Lord Hanuman in the statehouse grounds.

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.

Recent Articles and Publications of Interest

From SSRN:

• Irshad Hameed, The Financing of Real Estate in Islamic Finance: A Critical Examination of the Bai-Bithaman Ajil and the Musharikah Mutanaqisah Models of Real Estate Financing, (November 25, 2013).
• John P. Anderson, Law Beyond God and Kant: A Pragmatist Path to Liberal Neutrality in Pluralistic Democracies, (December 3, 2013).
• Linda C. McClain, From Romer v. Evans to United States v. Windsor: Law as a Vehicle for Moral Disapproval in Amendment 2 and the Defense of Marriage Act, (Duke Journal of Gender Law & Policy, Vol. 20, p. 351 (2013)).
• Lena-Maria Möller, Family Law in the Arab Gulf: Recent Developments and Reform Patterns, (Journal of Islamic State Practices in International Law (JISPIL), Vol. 9, No. 2, 2013, Forthcoming).

From SmartCILP and elsewhere:

• David E. Campbell, Religious Tolerance in Contemporary America, [Abstract][Lexis link], 62 DePaul Law Review 1009- 1033 (2013).
• Matthew J. Parlow, Public Choice Theory, Catholic Social Teaching and Citizens United, 6 University of St. Thomas Journal of Law & Public Policy 331-346 (2012).
• Arthur C. Brooks, The Great Recession, Tax Policy, and the Future of Charity In America, (American Enterprise Institute, Dec. 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."

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.]

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.]

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.

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).

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.

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).

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.