Religion Clause

Tuesday, December 15, 2015

Suit Says Faculty Applicant Was Blindsided By Religious Affiliation Requirement

AP reported yesterday on a lawsuit filed in state court in Portland, Oregon by a Jewish man who was ultimately not hired as an adjunct professor of psychology at the Christian-based Warner Pacific College. While Oregon law allows a religious institution to hire on the basis of religion, applicant Noel M. King says that the school's job posting only said that applicants had to agree to respect Christ-centered values and Christian faith. It did not say they had to be members of the Christian faith. King says he went through a 4-month application process, three interviews and a teaching demonstration, and was recommended by the hiring committee who knew he was Jewish, before the school's president vetoed his hiring because of his religious affiliation. He asks for $268,000 in damages, claiming that he missed out on applying for other jobs while Warner Pacific strung him along.

Confirmation of Tax Division Chief Delayed Over Past Position On ADF's Pulpit Initiative

The Chicago Tribune last week reported that President Obama's nomination of Cono Namorato to be Assistant Attorney General for the Tax Division of the Department of Justice, is being held up in the Senate Judiciary Committee because of the position he took in the past on church involvement in partisan political activity. In 2008, while a lawyer at the Washington firm of Kaplan & Drysdale, Namorato along with two other attorneys wrote the Internal Revenue Service's Office of Professional Responsibility complaining about the Pulpit Initiative being promoted by Alliance Defense Fund (now known as Alliance Defending Freedom). The letter urged an investigation of ADF's lawyers for "explicitly soliciting churches across America to violate Federal law" that bars partisan political participation by tax-exempt organizations.

Monday, December 14, 2015

Army Grants Accommodation For Sikh Combat Soldier To Wear Beard

According to a New York Times report yesterday, the U.S. military for the first time has granted a Sikh combat soldier a religious accommodation to allow him to grow a beard and serve with uncut hair under his turban. Captain Simratpal Singh, a West Point graduate and Bronze Star winner who led a platoon of combat engineers in clearing roadside bombs in Afghanistan, previously reluctantly shed his beard and long hair. But recently while on leave he stopped shaving. Now the Army has granted him (with certain conditions) a one-month temporary exemption (full text of Army memo) while it considers whether to make the accommodation permanent. Since 2009, three other Sikhs, two Muslims and a Jewish rabbi have been granted religious accommodations to wear beards, but none of them were in combat units. They were either chaplains or specialized medical personnel. Some believe that Capt. Singh's case could serve as precedent for other Sikhs, Muslims and others who wish to adhere to their religious traditions while in the Army.

British Court of Appeals Says Muslim Prison Chaplains Did Not Suffer Pay Discrimination

In Naeem v The Secretary of State for Justice, (EWCA, Dec. 9, 2015) , the England and Wales Court of Appeal held that discrimination was not the cause of the average pay of Muslim prison chaplains in British prisons being lower on average than that of Christian chaplains. Instead it was caused by the fact that the Prison Service only began employing Muslim chaplains in 2002. Before that there were not enough Muslim prisoners to call for employing full-time Muslim chaplains. Thus the average length of service for Muslim chaplains is less than for Christian chaplains. Chaplains get pay raises based on length of service.

Petitioners, who originally brought their cases before an Employment Tribunal, argued that they were the victims of "indirect discrimination"-- which is defined in British law as a practice that operates with a disparate impact on a protected class. The appeals court, relying on earlier precedent, held: "an employer can rebut a claim of indirect discrimination by showing that an apparent disparate impact is the result of non-discriminatory factors." Law & Religion UK reports further on the decision.

Sunday, December 13, 2015

Recent Prisoner Free Exercise Cases

In Milum v. State, 2015 Tex. App. LEXIS 12571 (TX App., Dec. 10, 2015), a Texas state appeals court rejected a claim by a defendant in a child sexual assault case that he had ineffective assistance of counsel when his lawyer failed to object to a condition of community supervision that allowed him to enter a church, synagogue or other house of worship only to attend a public service.

In Hughes v. Godinez, 2015 U.S. Dist. LEXIS 165938 (ND IL, Dec. 11, 2015), an Illinois federal district court allowed an inmate to proceed against prison officials on his claim that restrictions on religious exercise imposed while he was in segregated housing for possessing contraband violated his free exercise rights. While in segregated housing, he was not permitted to attend religious services in person or visit with clergy, and was allowed to view only one denomination's services on closed circuit television.

In Alderson v. Kelley, 2015 U.S. Dist. LEXIS 166272 (ED AR, Dec. 11, 2015), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 166274, Nov. 17, 2015) and allowed an inmate to move ahead on his complaint that the prison warden is not properly implementing the Department of Corrections grooming policy that allows a prisoner to wear a beard where required by the inmate's sincerely held religious belief.

In Isaac v. Pruette, 2015 U.S. Dist. LEXIS 166432 (ED VA, Dec. 10, 2015), a Virginia federal district court dismissed a Muslim inmate's complaint that he was initially not added to the list for attending Jummah services, that two Jummah services were canceled, and that he was not furnished a religious diet.

Gambia's President Declares It an Islamic State

On Friday, the President of the West African nation of Gambia proclaimed the largely Muslim country to be an Islamic state. According to Al Jazeera, Gambia's President Yahya Jammeh said that his country "cannot afford to continue the colonial legacy." However Jammeh pledged to protect the rights of Gambia's Christian community-- about 8% of its population, and said there will be no mandates as to dress. Opposition politicians say that the Constitution provides that Gambia is a secular state. Some commentators suggest that Jammeh's move is an attempt to create closer relations with the Arab world after losing Western support because of the country's dismal human rights record and rampant corruption.

Group Encourages Conservative Christian Pastors To Run For Public Office

Reuters on Friday reported on new efforts to motivate conservative Christian pastors to run for local public office in the U.S. The article focuses on "a tactical shift" in the "Christian far right":

Aiming to motivate conservative Christians, they are focusing on smaller political races, local ballot initiatives and community voter registration drives.

At the center of the effort is the American Renewal Project, an umbrella group that says it has a network of 100,000 pastors. It is headed by evangelical Republican political operative David Lane, who wants to recruit 1,000 pastors to run for elected office in 2016.

So far, roughly 500 have committed to running, Lane told Reuters.

District Court Refuses To Extend Exemption From Contraceptive Mandate To Non-Religious Organization and Its Religious Employees

In Real Alternatives, Inc. v. Burwell, (MD PA, Dec. 10, 2015), a Pennsylvania federal district court, in a 76-page opinion, rejected two related challenges to the Affordable Care Act contraceptive coverage mandate. The first challenge was brought by a non-profit, non-religious, pro-life organization that claimed equal protection principles require that it be extended the same exemption from furnishing its employees contraceptive coverage as is given to religious employers. The court held that the government's interest in protecting religious freedom is a rational basis for distinguishing religious from non-religious groups, and that the group here differs significantly from a religious organization:

Here ... we confront only Real Alternatives’ mission statement – a brief, single sentence explaining that Real Alternatives is a business which “exists to provide life-affirming alternatives to abortion services throughout the nation.”... Though based on moral beliefs, this single mission statement is not “equivalent to religion.” ... It does not provide a comprehensive code to guide individuals in their day-to-day life challenges. It does not operate to fill the same position in one’s mind that religion can occupy. More akin to a political position with moral underpinnings than a coherent ideology, Real Alternatives’ single mission statement is simply not comparable to a philosophic belief system such as Janism or Buddhism....

The court also held that various provisions in federal law that protect conscience rights of those that object to abortion are inapplicable here:

Though Plaintiffs may believe that certain FDA-approved contraceptives cause abortions, federal law has never equated emergency contraceptives with abortion.

The second challenge was by the three employees of Real Alternatives (all lawyers) who argued that the government violated RFRA by forcing them to obtain insurance that includes coverage for drugs and devices to which they are religiously opposed. The court rejected this contention, finding that the requirement does not impose a "substantial burden" on their religious exercise because it does not cause them to modify their behavior in violation of their beliefs:

[W]e cannot in good conscience find that a burden which ... requires no independent affirmative act on the Plaintiffs’ part, is substantial enough to run afoul of the RFRA.

The court went on to hold that the mandate furthers the government's compelling interests in gender equality and public health. It added another consideration:

Often, as is the case with Plaintiffs today, entire families are covered by one plan. Health care coverage decisions therefore are not left wholly to the individual but are often made in the context of the family. Yet there is no guarantee that every member of a family covered by a plan feels similarly regarding contraceptive services. If families with religious objections to contraceptive coverage are able to opt out of such coverage, the determination of whether to do so is left to the collective family unit. This collective decision could create untold tension and familial strife should disagreement over contraceptive coverage arise, which is more likely now that children up to the age of twenty-six may be covered by their parents’ plans.

Saturday, December 12, 2015

Supreme Court Grants Cert In Prisoner Rights Case

Yesterday the U.S. Supreme Court granted certiorari in a prisoner rights case, Ross v. Blake, (Docket No. 15-339, cert. denied 12/11/2015) (Order List). While the case does not raise prisoner free exercise issues, its resolution will impact litigation by prisoners claiming failure to accommodate religious beliefs. In the case, the 4th Circuit in a 2-1 decision (full text) held that the requirement in the Prison Litigation Reform Act that an inmate exhaust administrative remedies before filing suit is satisfied when the inmate reasonably, though erroneously, believed he had exhausted all internal remedies. SCOTUSblog's case page with links to all the filings in the case is here.

Court Suggests Innovative Interpretation of ERISA "Church Plan" Exemption

A series of cases filed around the country have challenged the treatment of Catholic hospital system pension plans as "church plans" exempt from ERISA. Often challengers are employees who contend that the plans have not been funded in compliance with ERISA or met other ERISA requirements. The issue has generally been framed as whether it is sufficient that the plans are maintained by the church-affiliated organization that created them, or instead whether the plans must have been established by a "church" for the affiliated medical systems in order to qualify as a "church plan." (See prior posting.) The statutory language in ERISA is ambiguous.

Now in Medina v. Catholic Health Initiatives, (D CO, Dec. 8, 2015), a Colorado federal district court, while coming down on the side of those courts which have ruled that it is enough that the plan be established and maintained by the affiliated medical system, has also suggested a more direct way to cut the Gordian knot. It suggests that a Catholic health care system is itself a "church", not just an organization affiliated with a church:

[T]he suggestion that a church is no more than a physical place in which to worship evidences a profound misunderstanding and understatement of the nature of religious devotion and service. At the heart of any church are the religious principles that inform its founding, as animated by the faithful adherents to those principles. Indeed, there would be no need for a house in which to worship if there were no worshipers to gather there. In other words, a church is defined principally by its people – the body of the faithful who profess a similar set of guiding religious principles. Where such people gather to express, in word or deed, the principles and mission of their faith, they are the church.

Under this more resonant definition, the court has little trouble in concluding that CHI is, at the very least, a constituent part of the Catholic Church.

The court also held that the ERISA church plan exemption does not violate the Establishment Clause. saying "Congress’s expressed purpose in carving out the church plan exemption was precisely to avoid unnecessary entanglement with religion."

Friday, December 11, 2015

Australian Court Finds Anglican Diocese Liable For $40M Bank Loan

In Anglican Development Fund Diocese of Bathurst v. Palmer, (NSW Sup. Ct., Dec. 10, 2015), a trial court in the Australian state of New South Wales held (in a 615 paragraph opinion) that the Anglican Diocese of Bathurst is liable for a $40 million (Aus.) loan (equivalent to $29M US) from the Commonwealth Bank of Australia which the bank extended, under a special policy for loans to certain religious organizations, solely on the basis of "a letter of acknowledgment" from the Bishop of Bathurst. The Diocese's Anglican Development Fund had reloaned $28 million (Aus.) of the funds to two start-up schools that failed. The Sydney Morning Herald reports on the decision.

British Columbia Court Requires Law Society Approval of Trinity Western Law School

In Trinity Western University v. Law Society of British Columbia, (BC SC, Dec. 10, 2015), a British Columbia trial court reinstated an April 2014 vote by the Benchers of the Law Society of British Columbia approving graduates of Trinity Western University Law School for entry into the Society's bar admissions program. In October 2014, the benchers had reversed their earlier approval after a referendum of the full membership disapproved of Trinity Western's required community covenant for students and faculty. The covenant includes a prohibition on sexual intimacy outside of a marriage between a man and a woman. (See prior posting.) The court however concluded that the referendum and subsequent October vote of the Benchers were procedurally flawed:

There is no basis upon which a conclusion could be drawn ... that the LSBC’s membership considered, let alone balanced, the petitioners’ Charter rights against the competing rights of the LGBTQ community....

While the Benchers clearly weighed the competing Charter rights of freedom of religion and equality before voting on the April Motion, the record does not permit such a conclusion to be reached with respect to the Benchers’ vote of October 31, 2014. As the respondent had bound itself to accept the referendum results of its members, I am unable to find that the vote of the LSBC’s members or the impugned decision considered, let alone balanced, the two implicated Charter rights. Further support for this conclusion comes from the fact that opposite results were reached by the Benchers’ votes of April 11 and October 31, 2014, despite the October 31, 2014 vote being conducted without any substantive discussion or debate.

CTV News reports on the decision.

Suit Challenges Non-Discrimination Fix To Indiana's RFRA ; Local Anti-Discrimination Laws

In Indiana yesterday, two pro-family advocacy groups filed suit in state court challenging the constitutionality of this year's anti-discrimination "fix" to Indiana's Religious Freedom Restoration Act. The suit also challenges the legality of two local anti-discrimination ordinances-- one adopted by the city of Carmel and one by Indianapolis-Marion County. The 178-paragraph complaint (full text) in Indiana Family Institute, Inc. v. City of Carmel, Indiana, (IN Super. Ct., filed 12/10/2015), says that plaintiff organizations believe in the Biblical teaching that marriage must be between one man and one woman, and that sexual relations must be within that marriage context. They want to follow these teachings in their employment decisions and their programs. They contend that the challenged laws preclude this, and in doing so violate a variety of state and federal constitutional provisions. In a press release announcing the filing of the lawsuit, plaintiffs' attorneys said in part:

RFRA originally protected all religious viewpoints and insured a high level of protection for peoples' free exercise of religion. The 'fix,' however, stripped that protection based on a person's particular religious view, such as, opposition to same-sex marriage. This pits some religions that the government protects against other religions that will suffer government punishment if they don't fall in line. We believe this discrimination between religious views is unconstitutional...

Indianapolis Star reports on the lawsuit.

UPDATE: In January 2016 plaintiffs filed an amended complaint adding Bloomington and Columbus, Indiana as defendants.

Suit Against Church Claims Plaintiffs Were Defamed After They Opposed Hiring Openly Gay Pastor

The Fargo Forum in an initial and follow-up article reports on a lawsuit filed this week in Cass County, North Dakota state district court against a Kindred, North Dakota Lutheran church, church leaders and the church's parent bodies. Plaintiffs Ray and Joan Grabanski who had been church members for 23 years seek damages for defamation and infliction of emotional distress. The Grabanskis opposed the church's hiring of an openly gay pastor. As recounted by the Forum:

The lawsuit says when the Grabanskis made their views known, they were subjected to "public ridicule, scorn, intimidation, isolation" by the church leadership, and were told the congregation was too liberal for them.

Joan Grabanski was asked to stop teaching Sunday school, and the couple was told they could leave or be forced out, with church leaders calling them "a cancer," the lawsuit alleges.

The lawsuit alleges the local synod of the ELCA was aware of the conflict and failed to stop the damaging behavior.

It names the ELCA and the Eastern North Dakota Synod of the ELCA, as well as the church's interim pastor and two other church leaders.

Defendants are seeking dismissal arguing that civil courts lack jurisdiction to adjudicate doctrinal beliefs or interpret a church's constitution. [Thanks to Christopher Dodson for the lead.]

Thursday, December 10, 2015

Obama Hosts Two White House Hanukkah Receptions

President Obama yesterday hosted two Hanukkah receptions at the White House-- one at 4 pm and the other at 7:30 pm. Press coverage has focused on the first at which, as reported by the Times of Israel, visiting Israeli President President Reuven Rivlin lit the Hanukkah candles. Last month the White House asked the public to suggest special menorahs that might be used at this year's receptions, and yesterday it posted the stories of the two that were chosen plus several runners up. A 15-minute video of remarks by Obama and Rivlin, as well as by Rabbi Susan Talve, at the first reception has been posted by the White House on YouTube.

Bill In Israel's Knesset Encouraging Female Muslim Judges Draws Orthodox Jewish Opposition

While it is well known that Israel has a system of Jewish religious courts, it is sometimes overlooked that the country also has a system of religious courts for over a dozen other religious communities. These religious courts deal with personal status family law matters of Israelis who are members of those religious groups. (Background.) Times of Israel reported yesterday on a bill proposed by three members of the Knesset (Israel's Parliament) that would require those appointing judges to Muslim religious courts to include at least one woman on the list of nominees and encourage in other ways election of women to Muslim courts. The bill has the backing of the important Ministerial Committee of Legislation. However under the coalition agreement between the parties in Prime Minister Netanyahu's government, the ultra-Orthodox United Torah Judaism party has a veto over legislation on religion-state matters. A party spokesman said it was planning to exercise the veto here because it fears the bill could set a precedent for Jewish religious judges which, under Orthodox Jewish law, are only male.

Alien Tort Suit Focuses On Sectarian Rivalry In Turkey

A suit seeking damages under the Alien Tort Statute was filed in a Pennsylvania federal district court this week against Muhammed Fethullah Gülen, a Turkish cleric who has lived in the United States since 1998. The complaint (full text) in Ates v. Gulen, (MD PA, filed 12/7/2015) was nominally brought by three individuals who are members of the Sunni Muslim Dogan Movement, an Anatolian offshoot of the rival Nur Movement. However according to BuzzFeed News, the Turkish government is behind the lawsuit because Gulen is now an archrival of President Recep Tayyip Erdogan.

According to the complaint:

Over the course of the past two decades, Mr. Gülen has implemented a political strategy of encouraging his followers to secure official positions within the official Turkish state apparatus – notably in police, prosecutorial and judicial positions – through whom he is able to exercise a corrupt influence in Turkish society....

Defendant intentionally ordered the coordinated, systematic attack on members of the Doğan Movement because of that group’s religious beliefs and public criticism of Defendant. Defendant ordered his co-conspirators in Turkey to use their high level positions in Turkish law enforcement to identify members of the Doğan Movement, plant evidence, and target them for arrest and incarceration.

The complaint also alleges:

Mr. Gülen has an international following estimated to approach 10 million people. He has developed a vast network of businesses and non-governmental organizations that supply him with financial support, and he is estimated to control at least $25 billion in assets. In the United States, Mr. Gülen controls dozens of business entities and more than 120 charter schools in various states, many of which are or have been under investigation by state and federal criminal and regulatory authorities.

City Will Sue Church Over Ownership of Land On Which Religious Welcome Sign Stands

In Hawkins, Texas, on a 50' x 45' parcel of land between two roads, visitors are greeted with a sign reading "Jesus welcomes you to Hawkins". In June, the Freedom From Religion Foundation wrote the city objecting to the sign (see prior posting), and in September city council voted to remove it. Tuesday's Tyler Morning Telegraph recounts what happened next. Almost immediately after the vote, members of the Jesus Christ Open Altar Church cordoned off the site on which the welcome sign stands, and had members guarding the site at all hours of the day and night. The Church then purported to buy the land and sign from two funeral homes. But the city attorney says that the funeral homes did not own the land, so that their deeds to the church conveyed nothing. On Tuesday, City Council voted to sue the Church and the funeral homes to establish the city's ownership of the property, even though Hawkins' mayor disagrees with City Council's decision.

Suit Challenges North Carolina Law Allowing Officials To Opt Out of Same-Sex Marriage Duties

As previously reported, last June the North Carolina General Assembly overrode the governor's veto to pass to pass Senate Bill 2 that gives individual magistrates have the right to recuse themselves from performing marriages based on any sincerely held religious belief and gives individual register of deeds personnel the right to opt out of issuing marriage licenses on similar grounds. (See prior related posting.) Yesterday three couples filed suit in federal district court challenging the constitutionality of the new law. One of the couples is already in a same-sex marriage; a second same-sex couple acting as plaintiffs are engaged to be married; and the third are a blind, heterosexual interracial couple who in 1976 had to sue in order to marry because two North Carolina magistrates refused to perform the ceremony on religious grounds.

The complaint (full text) in Ansley v. State of North Carolina, (WD NC, filed 12/9/2015) contends that Senate Bill 2 violates the Establishment Clause, the Equal Protection Clause, and the Due Process Clause. WNCN News reports on the filing of the lawsuit. Rev. Mark Creech of the Christian Action League called the lawsuit "an effort by gay activism to run people of faith completely out of the public sector." On the other side, Rev. Jamine Beach-Ferrara of the Campaign for Southern Equality argued that the bill "distorts the true meaning of religious freedom."

Wednesday, December 09, 2015

Federal Court In Habeas Action Finds California Prosecutor's Use of Biblical References Prejudicial

In Roybal v. Davis, (SD CA, Dec. 2, 2015), a California federal district court granted penalty phase habeas corpus relief in a petition brought by a defendant who had been sentenced to death by a California state jury in the robbery and stabbing murder of a 65-year old woman. The district court found that the California Supreme Court was "objectively unreasonable" in concluding that improper argument by the prosecutor during the penalty phase of the murder trial was harmless error and not prejudicial to the defendant. (People v. Roybal, (1998)). At issue were Biblical references made by the prosecutor. The district court, in a very lengthy opinion dealing with numerous other objections as well, said in part:

It is without question that the prosecutor improperly urged the jurors to impose a death sentence on Petitioner based on biblical law.... [T]he prosecutor did not stop with simply drawing parallels between state law and biblical law which, in itself, would have been misconduct. He went on to quote directly from the Bible, asserting that biblical text demanded a specific punishment for murder.... Such argument could only have been meant to urge the jurors to find justification for a death sentence in biblical text, authority well outside the penal code, and to subvert or frustrate their consideration of the proper sentencing factors under state law....

Here, the prosecutor's unambiguous, repeated, and carefully timed improper exhortations to the jury to apply biblical law diminished the jurors' sense of personal decision-making for the imposition of the death penalty. In so many words, the jury was informed that the Bible requires a murderer who kills with iron (i.e. knife) to himself be put to death. The prosecutor's improper argument presented an intolerable danger that the jury minimized its role as factfinder and encouraged jurors to vote for death because it was God's will, and not that the imposition of the death penalty complied with California and federal law.....

As discussed above, the California Supreme Court correctly found that the prosecutor's religious argument was misconduct and fell outside the bounds of both state and federal law, but unreasonably found that the comments were not prejudicial.

San Diego Union Tribune reports on the decision.

9th Circuit Hears Arguments In Suit Over FBI Infiltration of Mosques

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Fazaga v. FBI. The class action lawsuit against the FBI and FBI agents alleges that the government wrongfully spied on mainstream mosques in Southern California and targeted Muslims for surveillance because of their religion. (ACLU case page.) In the case, a California federal district court dismissed claims against the FBI because of the state secrets privilege, agreeing that national security would be endangered by disclosing targets in counter-terrorism investigations. The court, however, permitted claims under the Foreign Intelligence Surveillance Act against individual FBI agents and supervisors to proceed. (See prior posting.) Politico reports on yesterday's oral arguments, in which all the questions to counsel were asked by Judge Berzon.

Another County Clerk's Religious Response To Issuing Same-Sex Marriage Licenses

The latest kerfuffle over marriage equality has surfaced in Kiowa, Colorado where the Ebert County Clerk-- responsible for marriage licenses-- has hung a controversial poster above the desks where marriage licenses are issued. According to Denver7 News, the poster, made specifically in response to the legalization of same-sex marriage, shows a bride and groom along with a Biblical quotation (I Corinthians 7:2) reading "...each man should have his own wife and each woman her own husband." County Clerk Dallas Schroeder explained in an e-mail to other county clerks:

My thought process is that they [same-sex couples] have to see the poster, and if they choose to violate God’s written Word, then that is on their head.

Muslim Student Sues Missouri Prof Over Alleged Bigoted Comments

Yesterday's Missourian reports on a lawsuit filed Nov. 30 against University of Missouri biology professor Michael Garcia by Fatma El-Walid, an observant Muslim student who was in one of Garcia's classes. The suit, seeking $25,000 in damages, claims that the professor directed offensive and bigoted comments at the student during office hours, resulting in trauma that impacted her grades and the loss of a scholarship. According to the report:

The lawsuit alleges that ... Garcia asked El-Walid if her parents had waterboarded her "as a child in preparation for the future," wanted to know if her faith made her hate gay people and Jews, suggested she should pose as a suicide bomber and made sexually suggestive remarks, among other comments.

Garcia's lawyer says his client denies the charges.

Tuesday, December 08, 2015

Britain's Commission on Religion In Public Life Issues Final Report

The Commission on Religion and Belief in British Public Life-- created by the Woolf Institute in 2013-- released its final report yesterday. The Commission was chaired by a distinguished retired British judge, Baroness Elizabeth Butler-Sloss. The 104-page report titled Living With Difference-- Community, Diversity and the Common Good makes wide-ranging recommendations. It identifies important religious changes in Britain over the past 50 years: an increase in the number of non-religious individuals; a general decline in Christian affiliation, belief and practice; and increased diversity of religious beliefs among those who profess a religion. The report sets out a broad vision:

The commission’s vision is of a society at ease with itself in which all individuals, groups and communities feel at home, and in whose flrishing all wish to take part. In such a society all:

• feel a positive part of an ongoing national story – what it means to be British is not fixed and final, for people in the past understood the concept differently from the way it is seen today and all must be able to participate in shaping its meaning for the future

• are treated with equal respect and concern by the law, the state and public authorities

• know that their culture, religion and beliefs are embraced as part of a continuing process of mutual enrichment, and that their contributions to the texture of the nation’s common life are valued

• are free to express and practise their beliefs, religious or otherwise, providing they do not constrict the rights and freedoms of others

• are confdent in helping to shape public policy

• feel challenged to respond to the many manifest ills in wider society.

The Guardian reports on some of the Commission's recommendations, focusing particularly on those affecting schools.

Santeria Priest Extradited To Massachusetts To Face Trial For Stealing Human Remains

According to CBS Connecticut, Amador Medina-- a 32 year old man who says he is a Santeria priest-- waived extradition back to Massachusetts in a Connecticut court hearing today. Medina is accused of stealing five sets of human remains from a mausoleum in a cemetery in Worcester, Massachusetts, in order to use them in healing rituals. As reported by the Canon Place Mercury, the skeletal remains date from the early 1900's. Medina cooperated with police and showed them where the remains were in his Hartford apartment. The Connecticut judge set Medina's bond at $300,000 and ordered mental health treatment for him. Medina is unemployed and will not be able to post the bond.

Catholic Diocese of Duluth Files For Bankruptcy Reorganization

The Catholic Diocese of Duluth announced yesterday that it has filed on an emergency basis for bankruptcy protection in order to reorganize under Chapter 11. The move comes after a jury last month found the Diocese liable for $4.9 million in a clergy abuse case dating back to 1978. (See prior posting.) As reported by AP, the diocese faces five other sex abuse lawsuits that have already been filed, and has received notices of claims in 12 more. Minnesota's 2013 Child Victims Act opened a statute of limitations window that closes next May for suit to be filed on old abuse claims. Plaintiff's attorney says that the bankruptcy stay delays attempts to force release of church documents on clergy sex abuse. A hearing on a motion to force release had been scheduled for December 17. The Diocese's vicar general said that the filing safeguards the Diocese's limited assets, allows it to continue its day-to-day work, and ensures that all victims share justly in the resources available. This is the 15th U.S. diocese or religious order to file for bankruptcy reorganization.

Judge Rejects Challenge To Florida's School Voucher Program

According to AP, yesterday a Florida state trial court judge refused to grant a preliminary injunction against operation of the state's two main school voucher programs. State Circuit Judge George Reynolds held that plaintiffs lacked standing to challenge the program that provides private school tuition for children with disabilities. He concluded that the other program that provides tuition assistance to low income families did not run afoul of state constitutional provisions, even though they allowed vouchers for attendance at religiously affiliated schools. Another suit broadly challenging the adequacy of state funding for education however is still moving forward.

Virginia Jury Awards Muslim Cabbie $350,000 in Religiously Motivated Assault Case

Washington Post reports that a Fairfax County, Virginia civil jury yesterday awarded $100,000 in compensatory damages and $250,000 in punitive damages to a Muslim cab driver who was suffered a broken jaw in an assault by a passenger after the passenger engaged in a diatribe against the Muslim religion. The assault by Ed Dahlberg, a Fairfax County businessman, on cab driver Mohamed Salim was captured in part on video. The jury found that Dahlberg's actions were motivated by animosity toward Salim's religion.

Monday, December 07, 2015

Donald Trump Calls For Ban on Muslims Entering United States

Acting in contradiction to the policy approach urged yesterday by President Obama (see prior posting), Republican front-runner Donald Trump this afternoon issued a statement (full text) calling for a complete ban on Muslims entering the United States. The statement reads:

Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing "25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad" and 51% of those polled, "agreed that Muslims in America should have the choice of being governed according to Shariah." Shariah authorizes such atrocities as murder against non-believers who won't convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

Mr. Trump stated, "Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again."

European Court Upholds Hungary's Refusal To Award Damages To Dismissed Pastor

Last week in a Chamber Judgment, the European Court of Human Rights held by a 4-3 vote that there had not been a violation of the European Convention on Human Rights, Sec. 6(1), when Hungary refused to adjudicate a dispute between a pastor and his Hungarian Calvinist Church. At issue were claims by a pastor who had been terminated by the Church for stating in a local newspaper that State subsidies had been paid unlawfully to a Calvinist boarding school. In Nagy v. Hungary, (ECHR, Dec. 1, 2015), a majority of the court, with fragmented reasoning spanning two opinions, concluded that there had not been a denial of the right to a hearing in the civil courts, particularly when a claim could have been brought in ecclesiastical courts. Three judges dissented, saying in part:

[I]t is more than doubtful that it would be possible at all to show that (and how) the settlement, by a State court, of the pecuniary dispute between the applicant and the Calvinist Church could pose a “real” and “substantial” risk to that church’s autonomy.

The Chamber Judgment may be appealed to the Grand Chamber. ADF issued a press release on the decision.

Focus On the U.S. Muslim Community In the Wake of the San Bernardino Shootings

Last night, just days after the San Bernardino killings, President Obama addressed the nation on issues of terrorism and keeping the country safe. (Full text of Oval Office speech). A portion of his remarks addressed the relationship of all Americans with the American Muslim community:

We cannot turn against one another by letting this fight be defined as a war between America and Islam. That, too, is what groups like ISIL want. ISIL does not speak for Islam. They are thugs and killers, part of a cult of death, and they account for a tiny fraction of more than a billion Muslims around the world — including millions of patriotic Muslim Americans who reject their hateful ideology. Moreover, the vast majority of terrorist victims around the world are Muslim. If we’re to succeed in defeating terrorism we must enlist Muslim communities as some of our strongest allies, rather than push them away through suspicion and hate.

That does not mean denying the fact that an extremist ideology has spread within some Muslim communities. This is a real problem that Muslims must confront, without excuse. Muslim leaders here and around the globe have to continue working with us to decisively and unequivocally reject the hateful ideology that groups like ISIL and al Qaeda promote; to speak out against not just acts of violence, but also those interpretations of Islam that are incompatible with the values of religious tolerance, mutual respect, and human dignity.

But just as it is the responsibility of Muslims around the world to root out misguided ideas that lead to radicalization, it is the responsibility of all Americans — of every faith — to reject discrimination. It is our responsibility to reject religious tests on who we admit into this country. It’s our responsibility to reject proposals that Muslim Americans should somehow be treated differently. Because when we travel down that road, we lose. That kind of divisiveness, that betrayal of our values plays into the hands of groups like ISIL. Muslim Americans are our friends and our neighbors, our co-workers, our sports heroes — and, yes, they are our men and women in uniform who are willing to die in defense of our country. We have to remember that.

The Muslim community is rethinking its responses to violence committed by Islamic radicals. An AP article yesterday reports:

[S]ome in the Muslim community say a new game plan is needed. A younger generation is especially impatient with the condemnations of Islamic extremism from Muslim groups after every attack. They argue that the statements merely reinforce false notions that Muslims are collectively responsible for the violence

And a group of American Muslims last week launched the Muslim Reform Movement with a Declaration (full text) that rejects interpretations of Islam that call for violence, social injustice or politicized Islam.

Meanwhile, a Reuters poll released yesterday finds that 51% of Americans view Muslims living in the United States the same as any other community, while 14.6% are generally fearful of Muslims living in the U.S. However 34.7% say they are fearful of "a few groups and individuals" in the Muslim community. Some 69% of Republicans surveyed and 48% of Democrats favor closing mosques suspected of having extremist ties.

Sunday, December 06, 2015

Hawaii Supreme Court Requires New Hearing For Proposed Telescope On Sacred Land

In Mauna Kea Anaina Hou v. Board of Land and Natural Resources, (HI Sup. Ct., Dec. 2, 2015), the Hawaii Supreme Court vacated on due process grounds a decision by the state's Board of Land and Natural Resources that allowed the University of Hawaii to construct a 30 meter telescope on land sacred to Native Hawaiians. At issue was a "next generation" large telescope to be built on Mauna Kea, a dormant volcano on the island of Hawaii. The court held that the Board acted improperly in approving the permit for the telescope, with construction merely delayed until a contested hearing on objections was held. The majority held that the due process clause of the Hawaii constitution was violated when a contested hearing was not held prior to a decision on granting the permit. A concurring opinion by Justice Pollack, joined by Justice Wilson and joined in part by Justice McKenna, held that the Board's action violated other provisions of the state's constitution as well, including Ar. XII, Sec. 7 that protects cultural and religious rights of descendants of Native Hawaiians. Christian Science Monitor reports on the decision.

Recent Prisoner Free Exercise Cases

In Cowart v. LaCasse, 2015 U.S. Dist. LEXIS 158333 (D SC, Nov. 24, 2015), a South Carolina federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 158593, Oct. 26, 2015) and dismissed an inmate's complaint that he believed the Common Fare diet which was marked kosher was in fact not kosher.

In Carpenter v. Extendicare Health Services, 2015 U.S. Dist. LEXIS 159876 D MN, Nov. 30, 2015), a Minnesota federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 160141, Oct. 26, 2015) and dismissed on various grounds12 claims, including a free exercise claim, against a private nursing home that incorrectly believed plaintiff was the subject of a court order barring him from release. The court found no state action.

In Farfan v. United States, 2015 U.S. Dist. LEXIS 160086 (SD FL, Nov. 24, 2015), a Florida federal magistrate judge recommended rejecting the claim by a federal inmate that her 144 month sentence for cocaine distribution violates RFRA because "she sincerely believes that God requires her to be at home with her family in order to properly observe holidays and rituals associated with her Catholic faith." The court responded in part: "The RFRA was enacted to encourage and protect free exercise of religion, even in a prison context. But it was never intended to be a get-out-of-jail-free card."

In McKnight v. MTC, 2015 U.S. Dist. LEXIS 160398 (ND TX, Nov. 30, 2015), a Texas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 160775, Nov. 9, 2015), and dismissed an inmate's claim that his free exercise and RLUIPA rights were infringed by housing him with a homosexual inmate.

Restrictions On Anti-Gay Marriage Protester Upheld

In Braun v. Terry, (ED WI, Nov. 30, 2015), a Wisconsin federal district court rejected claims by an anti-gay marriage protester that his free speech, equal protection and due process rights were infringed when authorities restricted the area in which he could carry his signs. The events at issue occurred on the first day that same-sex marriage licenses were issued and marriages were conducted at the Milwaukee County Courthouse. Plaintiff complains that he was not permitted to enter the courthouse to protest, and that the area in the park outside the courthouse where he could protest was restricted. The court found the restrictions imposed reasonable, non-discriminatory and narrowly tailored.

Mayor, Councilwoman Patch Up Dispute Over Christmas Tree

According to NJ.com, on Thursday, Roselle Park, New Jersey borough council voted 4-2 to go along with Mayor Carl Hokanson and change the name of the borough's annual "Tree Lighting" to "Christmas Tree Lighting." This led Councilwoman Charlene Storey to resign, arguing that the renaming changed the ceremony "from a non-religious event to a religious one." The mayor said that in going back to the event's traditional name, he was just calling the tree what it is. The mayor reached out to Storey, and after they met she withdrew her resignation. The mayor in turn set up a new committee on diversity that Storey will chair. She says she hopes the committee will come up with a process for groups to propose additions to the Christmas Tree Lighting and display, as well as deal with other diversity issues. Both Hokanson and Storey are Democrats; Storey was raised Catholic, but is now a "non-believer."

Saturday, December 05, 2015

Church's Suit Challenges Tax Decision Based On Project Gone Awry

In Panama City, Florida, the Faith Christian Family Church along with Markus Bishop, its owner and former pastor, filed suit last Monday against the Bay County Property Appraiser’s Office seeking to reverse a decision that restored three of the church's properties to the tax rolls. According to the Panama City News Herald, the dispute grows out of an innovative church project gone awry:

The church “wanted, as a form of religious and charitable outreach, to create a safe venue for young persons who might otherwise be endangered or tempted by the Spring Break revelry,” the complaint states. Faith Christian’s “intended concept was to offer a party-like but wholesome atmosphere, with music, food and non-alcoholic beverages. … Charitable outreach to persons who may be in need of a welcoming and safe refuge is a core religious principle of [Faith Christian’s] religious faith and practice.”

The complaint goes on to say that a promotion entity named Spring Break Amnesia was enlisted to market the outreach mission but “apparently had its own ideas for marketing and operation” by charging a $20 admission, selling sexually explicit merchandise and hosting naked paint parties and slumber-party Sundays.

For good measure, tax officials also revoked the non-profit status of a vacant lot next to the Life Center at which the spring break project took place, as well as the non-profit status of a mansion which the church claimed was a parsonage. The church claims that removing the properties' non-profit status infringed the church's First Amendment rights.

Friday, December 04, 2015

27 Sudanese Muslims Charged With Apostasy For Rejecting the Hadith

In Khartoum, Sudan, 27 defendants are on trial for apostasy. According to Middle East Online and the Sudan Tribune, the charges under Sec. 126 of the Sudanese Criminal Code potentially carries a death sentence, but such a sentence is unlikely to be carried out. The defendants are charged with preaching that only the Qur'an had religious authority, and rejecting the authority of the Hadith and of Sunnah.

Christian Camp Gets Preliminary Injunction Allowing It To Use Its Buses For Released Time Program

According to Public Opinion News, a Pennsylvania federal district court on Wednesday issued a preliminary injunction permitting Joy El Ministries to go back to using its own buses for its public school Released Time Bible Program while its lawsuit challenging state regulatory contentions is pending. The lawsuit, originally filed in state court, was removed to federal court by the state because it raises federal Establishment Clause issues. (Herald Mail Media). As previously reported, Pennsylvania State Police cited the Greencastle, Pennsylvania Christian camp for transporting students to and from school for its a once-a-week "released time" program in buses that do not meet the standards for vehicles owned by the school district or under contract with it. Among other things, the buses used by Camp Joy El do not have swinging stop signs attached to the side, are not marked as school buses and are not painted with the specifically required yellow paint. The camp claims its buses are not school buses and its program is not an extracurricular activity, so that it is not covered by the regulations. The camp has been renting other buses since state police cited it for violations.

Town Brings Back Nativity Scene-- This Time With Frosty and Reindeer

Last year, the town of Dallas, North Carolina moved its traditional nativity scene from the courthouse lawn to private property down the street under threat of a lawsuit from the Freedom From Religion Foundation. However many town residents were angry over the move. So, according to WSOCTV News yesterday, this year a nativity scene is back on the courthouse lawn. It is larger than the former one, but also includes figures of Frosty the Snowman and reindeer. The city attorney told the town's Board of Aldermen that under Supreme Court rulings, a nativity display is permitted if it includes secular figures. FFRF still contends that the display is improper.

First Family Lights National Christmas Tree

Reuters reports that President Obama and his family yesterday led the lighting of the National Christmas Tree across the street from the White House. Meanwhile, on a page titled Holidays at the White House, the White House website displays this year's White House Holiday Decor-- with the theme "A Timeless Tradition."

Thursday, December 03, 2015

European Commission Appoints Officials To Combat Anti-Semitism and Anti-Muslim Hatred

The European Commission announced on Tuesday that it has appointed a Coordinator on Combating Antisemitism (Katharina von Schnurbein, a German national), and a Coordinator on Combating Anti-Muslim Hatred (David Friggieri, a national of Malta). The new positions grew out of a Colloquium on Fundamental Rights held last October. [Thanks to Law & Religion UK for the lead.]

Church Gets Preliminary Injunction Under RLUIPA For Zoning Exclusion

In Hope Rising Community Church v. Municipality of Penn Hills, 2015 U.S. Dist. LEXIS 160148 (WD PA, Nov. 30, 2015), a Pennsylvania federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 160852, Oct. 28, 2015) and granted a preliminary injunction to a church that was ordered to stop holding worship services in a warehouse building it leased in an area zoned only for "Light Industrial" uses. The city also denied a zoning variance. The court concluded that the city's zoning law violates RLUIPA's "equal terms" provision by not allowing churches as a permitted use in areas zoned "Light Industrial," given the other types of uses that are allowed. The court concluded that:

the City has failed to show how a religious institution would cause greater harm to the Light Industrial District and its objectives than parks, playgrounds and educational institutions [which are permitted].

Court Issues Preliminary Injunction Against School Show's Live Nativity Depiction

In Freedom From Religion Foundation v. Concord Community Schools, (ND IN, Dec. 2, 2015), an Indiana federal district court granted a preliminary injunction barring an Indiana school district from presenting its traditional live nativity scene as part of this year's school Christmas Spectacular show. The court said in part:

a reasonable observer would fairly believe that the portrayal of the living nativity scene, when viewed in the particular context, circumstances, and history of the Christmas Spectacular, conveys a message of endorsement of religion, or that a particular religious belief is favored or preferred.

The court held that the school's insertion, in response to the filing of this lawsuit, of short segments on Hanukkah and Kwanzaa did not cure the Establishment Clause problem:

the way in which Chanukah and Kwanzaa are being presented in the show in comparison to the Christmas portion in general and the nativity scene in particular actually serves to place greater emphasis on and suggest greater preference of the religious message conveyed by the nativity scene.

In its press release on the decision, FFRF says it continues to prepare for trial on the merits since the preliminary injunction applies only to this year's show.

UPDATE: The Dec. 12 Goshen News reports that the school stayed in technical compliance with the preliminary injunction by featuring a static nativity scene using mannequins, in place of the enjoined live performance.

Wednesday, December 02, 2015

New Religion In Iceland Seeks To End Tax Support of Churches

According to yesterday's BBC News, in Iceland in recent weeks more than 1,000 people have registered as members of a new religious denomination, Zuism. The relatively new religion bases its teachings on ancient Sumerian beliefs. However its real goal is to end Iceland's parish fees-- a portion of each citizen's income tax that is allocated to the church with which the taxpayer is affiliated. The new group also wants the government to end record keeping of citizens' religious affiliations. The Zuist organization promises to rebate to its members any parish fees that are allocated to it. Tax authorities say any rebates will be subject to income tax.

Commentary: Will We See A Repeat of the "Kim Davis Saga" Over Transgender Rights?

As momentum grows to add "gender identity" to anti-discrimination laws, an interesting shift in argument by opponents can be discerned. Until recently, opposition focused primarily on privacy concerns. In the referendum battle earlier this year over Houston's Equal Rights Ordinance, while opposition was centered in churches, it was expressed in terms of concern about "allowing men to enter women's restrooms and locker rooms-- defying common sense and common decency." (See prior posting.)

In recent days, however, we are seeing a subtle shift that begins to frame opposition to transgender rights as a religious liberty issue. Earlier this week, Liberty Counsel filed an amicus brief (full text) on behalf of an organization known as Liberty Center for Child Protection in a 4th Circuit case involving the right of a Virginia school board to limit the use of sex-segregated locker rooms and restrooms on the basis of an individual's biological features. Liberty Counsel's press release describes its position as one that focuses on child protection:

Public schools adopting “gender identity” instead of biological sex abandons science, creates a hostile environment, and threatens the safety and well-being of children...

However language in the brief began to lay the foundation for a religious liberty argument by describing early researchers on transgender issues as individuals who had an "animus for Judeo-Christian sexual mores" and who blamed "Judeo-Christian principles, instead of early sexual trauma and mental illness for the distress suffered by 'transsexuals.'"

Then yesterday a lengthy online article (full text) by the conservative writer Ryan T. Anderson set out perhaps the clearest formulation yet of the religious liberty claim:

SOGI [Sexual Orientation and Gender Identity] laws threaten the freedom of citizens, individually and in associations, to affirm their religious or moral convictions — convictions such as that marriage is the union of one man and one woman or that maleness and femaleness are objective biological realities to be valued and affirmed, not rejected or altered. Under SOGI laws, acting on these beliefs in a commercial or educational context could be actionable discrimination. These are the laws that have been used to penalize bakers, florists, photographers, schools, and adoption agencies when they declined to act against their convictions concerning marriage and sexuality. They do not adequately protect religious liberty or freedom of speech.

To the extent that compliance with laws barring discrimination on the basis of gender identity is viewed as a violation of religious conscience, we could well see a repeat of the "Kim Davis saga," this time in the form of school principals and superintendents blocking restroom doors.

Nativity Pageant Challengers May Sue Anonymously

In an order (full text) issued Monday, an Indiana federal magistrate judge allowed two individual plaintiffs in a lawsuit challenging an Indiana high school's Nativity Pageant to proceed anonymously. (See prior related posting.) Plaintiffs asked for the order "because one Doe Plaintiff is a minor, because of the history of violence and intimidation against plaintiffs in other Establishment Clause cases similar to this one, and because there is a reasonable expectation that the Doe Plaintiffs here will be the victims of harassment, injury, and other serious harm if their identities are made public." Defendants did not object to the order. The Elkhart Truth reports on the order.

Tuesday, December 01, 2015

South Africa's Jewish Community Creates Internal Body To Regulate Ritual Circumcision

According to yesterday's Jerusalem Post, South Africa's Jewish community is setting up its own Committee to oversee and regulate the practice of ritual circumcision in the nation. The Committee will set requirements for circumcisions based on Jewish law and the highest standards of professionalism, health and safety. The decision by Chief Rabbi Warren Goldstein and the Beth Din (rabbinic court) implements the recommendations of a commission of inquiry set up by the Jewish community after a serious malpractice incident by an elderly mohel last June. In order to practice, a mohel will need to be accredited by the new committee, and have the accreditation renewed every two years. The country's Chief Rabbi has already imposed a lifetime ban on the mohel whose malpractice triggered the new recommendations.

Plaintiff In Clergy Abuse Case Alleged No Duty Owed To Him By Diocese

In Doe v. Tissera, 2015 Conn. Super. LEXIS 2757 (CT Super., Nov. 3, 2015), a Connecticut trial court held that while the 1st Amendment does not immunize the Hartford Roman Catholic Diocese from liability in connection with clergy sexual abuse claims, nevertheless plaintiff here failed to allege adequate facts to support his negligence and breach of fiduciary duty claims against the Diocese:

Doe's claims ... do not allege a reasonably foreseeable risk of harm giving rise to a duty owed by the diocese to Doe. Without properly alleging that the diocese owed him a duty, Doe has no cause of action against the diocese.

Court Rejects Establishment Clause Challenge To Bladensburg Cross

In American Humanist Association v. Maryland-National Capital Park and Planning Commission, (D MD, Nov. 30, 2015), a Maryland federal district court rejected an Establishment Clause challenge to a 40-foot tall Veteran's Memorial in the shape of a cross. The so-called Bladensburg Cross was erected in 1925 by the American Legion at the intersection of two highways. The original ownership of the land on which it sits was unclear, but the land was eventually transferred to the state. As Veterans Memorial Park, it is now also surrounded by other monuments. The court concluded that the cross does not have the effect of endorsing religion:

the predominant and nearly exclusive use of the Monument has been for annual commemorative events held on Memorial Day and Veterans Day.... In light of this history and context, of which a reasonable observer would be aware, the Monument "evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles...." The evocation of foreign graves is particularly relevant here because, unlike crosses challenged in other cases, the Monument explicitly memorializes forty-nine servicemen who died in Europe during World War I, and the "cross developed into a central symbol of the American overseas cemetery" during and following World War I....

The Baltimore Sun reports on the decision.

Monday, November 30, 2015

Italian School Head Provokes Controversy By Canceling Christmas Concert In Favor of Winter Musical In January

With Italy's population becoming more religiously diverse, it is now facing the kind of issues regarding Christmas celebration in public schools that have been common in the United States. Under attack from Italy's Prime Minister, the headmaster of a 1,000 pupil school in the town of Rozzano near Milan has been forced to resign after he canceled the school's traditional Christmas concert in favor of a non-religious Winter Concert in January. AFP, The Telegraph and Deutsche Welle all reported yesterday on aspects of the story. Before resigning, Marco Parma, headmaster of the Garofani comprehensive school whose student body is 20% non-Christian, said:

Last year we had a Christmas concert and some parents insisted on having carols. The Muslim children didn't sing, they just stood there, absolutely rigid. It is not nice watching a child not singing or, worse, being called down from the stage by their parents.

The school's teachers backed the headmaster, but Italian Prime Minister Matteo Renzi was incensed, saying:

Discussion and dialogue does not mean to say we can drown our identity for the sake of a vague and insipid form of political correctness. Italians, both non-religious and Christians, will never give up Christmas.

The head of Italy's anti-immigrant Northern League went further, arguing that "canceling traditions is a favor for terrorists."

Sunday, November 29, 2015

Belgian Court Sentences French Comedian For Anti-Semitic Remarks

Last Wednesday, a Belgian court sentenced French comedian Dieudonne M’bala M’bala to prison for two months, and imposed a fine equivalent to $9,500 (US) on him for his anti-Semitic remarks during a comedy show in Belgium in 2012. According to The Forward:

Judges said that the remarks, made in front of an audience of 1,100 people in the town of Herstal, were clearly calls to hatred and violence. By calling on Christians and Muslims to unite to kill Jews, he had incited genocide.

He was also ordered to pay for the entire text of the judgment against him to be printed in two leading French-language Belgian newspapers.

Dieudonne has prior convictions in France. Earlier this month the European Court of Human Rights refused to reverse Dieudonne's conviction in France for Holocaust denial stemming from a different performance. (See prior posting.)

On Retrial Saudi Court Sentences Poet To Death For Apostasy

The Star Daily Standard yesterday reported on a Nov. 17 judgment by a Saudi Arabian court that sentenced Palestinian artist Ashraf Fayadh to death for apostasy, apparently concluding he was spreading atheism. In his original trial, he was sentenced to 800 lashes and four years in prison on charges that his 2008 Arabic poetry book “Instructions Within” was insulting to God and religion. Also on the basis of photos in his phone, he was charged with illicit relations with women. Prosecutors appealed, seeking a harsher sentence, and the appeals court remanded for a new trial. At that trial he was sentenced to death. According to the Daily Standard report:

While judges in the initial trial also accepted Fayadh’s repentance for anything deemed offensive or insulting to religion in his book of poetry, judges in the retrial questioned whether repentance can nullify a proscribed punishment in a case involving “hadd”, which in Islam are specific crimes such as apostasy for which punishment is considered fixed. They also wrote that Fayadh’s repentance could only be accepted by the divine, and therefor they could not consider it when weighing the verdict.

It is likely the case will be appealed again.

Recent Prisoner Free Exercise Cases

In Woods v. McClure, 2015 U.S. Dist. LEXIS 158973 (ED TX, Nov. 24, 2015), a Texas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 159291, Sept. 30, 2015) and dismissed a Rastafarian inmate's complaint that he was not permitted to properly celebrate the Rastafarian holy day, the birthday of Haile Selassie.

In Trapp v. Roden, (MA Sup. Jud. Ct., Nov. 23, 2015), the Massachusetts Supreme Judicial Court held that the closure of a Wampanoag Tribal sweat lodge at a Massachusetts prison facility, purportedly because of health concerns over the smoke it produced, violated RLUIPA as well as a 2003 settlement agreement. MassLive reports on the decision.

PennLive reports that on Tuesday, a Middle District of Pennsylvania federal district court judge, in a case on remand from the 3rd Circuit ordered the Pennsylvania Department of Corrections to comply with a June settlement agreement that requires Camp Hill prison authorities to allow Christian inmates 30 minutes of fellowship and group prayer in the dining hall on Christmas after the mainline Christmas dinner has been served and other prisoners have left.

Saturday, November 28, 2015

African American Clergy Squabble Publicly Over Planned Endorsements of Donald Trump

As reported by Clutch, the Donald Trump campaign has been widely advertising a meeting on Monday between Trump and a group of well-known Black pastors. The meeting will be televised and streamed online live from the Trump Towers. Apparently a Trump campaign press release said that 100 African American religious leaders will appear with Trump on Monday to endorse him. On Friday, a group of 114 other Black religious leaders and scholars published an Open Letter in Ebony strongly criticizing those who plan to meet with Trump, saying in part:

[A]s people of God, you know that our theology shapes our politics, and politics are a great indicator of our theology. What theology do you believe Mr. Trump possesses when his politics are so clearly anti-Black? He routinely engages in the kind of rhetoric that brings out the worst sorts of white racist aggression, not only toward Black people, but also toward Mexican-Americans and Muslim-Americans, too. Surely, we can agree that this kind of unloving and violent language does not reflect the politics of the Christ we profess?

In response to all of this, several of the clergy who plan to attend the Monday meeting made it clear that they have not committed to endorsing Trump. According to the Daily Beast today, Bishop Clarence McClendon whose name leads the list of those advertised as planning to attend, said in a Facebook post:

I am not officially endorsing ANY candidate and when I do you will NOT need to hear it from pulpitting courtjesters who suffer from intellectual and spiritual myopia.

It is not clear that the 100 religious leaders who it was said will endorse Trump Monday are the same ones who are attending the advertised meeting.

Friday, November 27, 2015

Challenge To Gun Store's "Muslim Free Zone" Dismissed For Lack of Imminent Injury

In CAIR Florida, Inc. v. Teotwawki Investments, LLC, (SD FL, Nov. 24, 2015), a Florida federal district court dismissed a religious discrimination suit brought by a Muslim advocacy organization against a gun store and firing range whose owner announced (through a YouTube video) that it was implementing a "Muslim Free Zone." The suit alleged that the declaration by Florida Gun Supply violates Title II of the 1964 Civil Rights Act which prohibits discrimination in places of public accommodation. (See prior posting.) The court held however that the announcement -- which was seen on national television-- did not threaten imminent harm. The court agreed with defendant's contention that:

[T]here are no facts demonstrating that Plaintiff was (or will be) unlawfully discriminated against. There are no facts demonstrating that Plaintiff has attempted to purchase a firearm from Defendant and was denied on the basis of its religion or has attempted to attend a gun safety class and was denied on the basis of its religion or attempted to do anything at Defendant’s retail gun store and was denied on the basis of religion. And there are no allegations that Plaintiff will attempt to do any such activities at Defendant’s retail gun store in the future and be unlawfully denied on the basis of religion. Thus, Plaintiff has not alleged facts to demonstrate actual present harm or a significant possibility of future harm as required by Article III.

American Freedom Law Center, which represented defendants, issued a press release announcing the decision. Its press release described the announcement by Florida Gun Supply as a "refusal to equip Islamic terrorists." WND reports on the decision.

European Court Upholds French Hospital's Hijab Ban

The European Court of Human Rights yesterday, in a Chamber Judgment by a panel of 7 judges, upheld the decision of a French hospital to refuse to renew the employment contract of a Muslim social worker who insisted on wearing a headscarf (hijab). The full decision in Ebrahimian v. France, (ECHR, Nov. 26, 2015) is available in French (with a partial dissenting opinion in English). According to the Court's English press release on the decision:

[T]he Court found that the requirement of neutrality of public officials could be regarded as justified in principle: the State, as employer of the applicant in a public hospital, could consider it necessary that she refrain from expressing her religious beliefs in discharging her functions in order to guarantee equality of treatment of patients.... [T]he Court reiterated that while public officials enjoyed total freedom of conscience, they were prohibited from manifesting their religious beliefs in discharging their functions. Such a restriction derived from the principle of the secular nature of the State, and that of the neutrality of public services, principles in respect of which the Court had already approved a strict implementation where a founding principle of the State was involved.

The Court considered that the fact that the national courts had afforded greater weight to the principle of secularism-neutrality and the State’s interest than to Ms Ebrahimian’s interest in not having the expression of her religious beliefs restricted did not cause a problem with regard to the [European] Convention [on Human Rights].

A Chamber Judgment may be appealed to the ECHR Grand Chamber. The Scotsman reports on the decision. [Thanks to Paul de Mello for the lead.]