Supreme Court Rejects Prisoner's Tort Claim For Lost Religious Items

Yesterday in a 5-4 decision in Ali v. Federal Bureau of Prisons, (US Sup. Ct., Jan. 22, 2008), the U.S. Supreme Court rejected a tort claim by a federal prisoner seeking to recover the value of property that was lost when his belongings were moved from one prison to another. The missing items, worth $177, included two copies of the Qur'an, a prayer rug and religious magazines. The court's majority opinion, written by Justice Thomas, relied on a provision in 28 USC Sec. 2680(c) that precludes Federal Tort Claims Act suits for detention of goods or property against "any officer of customs or excise or any other law enforcement officer." The majority concluded that the provision is not limited to officers enforcing customs or excise laws. AP covers the decision, reporting that plaintiff Abdus-Shahid M.S. Ali claimed that the missing religious items are part of a widespread pattern of harassment against Muslim inmates since 9-11. (See prior related posting.) [Thanks to Blog from the Capitol for the lead.]

Court Says Religious Conflict With Grand Jury Appearance Justifies Dismissal

In People v. Shemesh, (NY App. Div., Jan. 15, 2008), a New York appellate court in a 3-2 decision affirmed a lower court's dismissal of a grand jury indictment on free exercise grounds. Defendant asserted his right to appear before the grand jury that was considering handing down a perjury indictment against him. However he ultimately did not testify because the prosecutor refused to reschedule his appearance to prevent a conflict with defendant's observance of Passover. The majority held that "under these unique circumstances ... the People did not offer defendant a reasonable or meaningful opportunity to testify before the grand jury." The two dissenters argued that defendant's belated rejection of various other acceptable dates to testify raised a question of whether he was making a good faith effort to cooperate.

Malaysian Authorities Confiscate Christian Children's Books Over Illustrations

Australia's Christian Today reports that Malaysian authorities have recently confiscated Christian children's books claiming that graphic depictions in them of the Biblical figures Abraham and Moses violate Islamic law. General-secretary of the Malaysian Council of Churches, Reverend Hermen Shastri, called on the Interior Ministry to amend its regulations to prevent enforcement officials from acting on their personal whims.

Nevada Dems Schedule Convention For Eve of Passover

As previously reported, Nevada effectively disenfranchised observant Jews and Seventh Day Adventists last week by holding its caucuses to select delegates to the Republican and Democratic national conventions on Saturday. Now, it turns out, that the Nevada Democratic State Convention-- an all-day event-- will be held Saturday, April 19, in Reno. Not only is that the Jewish Sabbath, but that evening is the start of Passover. Even less-observant Jews generally attend a seder, which means many will travel to be with family or will need the day to prepare for the evening seder meal. Thanks to Frume Sarah's World for discovering this latest religious accommodation issue.

Suit Challenges Limits On Pastor's Speech Near Gay Pride Event

The Alliance Defense fund announced that it filed a federal lawsuit in Wichita, Kansas last Thursday on behalf of a pastor who was prevented from preaching and distributing literature on a public sidewalk near a Gay Pride event held last June in Wichita's Heritage Square Park. Police insisted that Pastor Mark Holick instead move to a private parking lot nearby. The complaint (full text) in Holick v. City of Wichita alleges that the police conduct violated Holick's rights to freedom of speech, association and religion as well as the 14th Amendment's due process clause. The lawsuit seeks a declaratory judgment and an injunction prohibiting interference with Holick's speaking in traditional public forums at future Gay Pride Events.

India's Supreme Court Allows Religious Pilgrimage Subsidies To Continue This Year

The Hindu reports that on Monday India's Supreme Court extended its order (see prior posting) allowing the government to pay out subsidies for Haj pilgrims and also for Mansarovar pilgrims. A constitutional challenge to the payment of subsidies under India's Haj Act is pending in the Allahabad High Court, which had temporarily enjoined the payment. The Supreme Court extended its earlier stay of that order, allowing subsidies for this year to proceed. The Supreme Court also asked the High Court to move expeditiously on the pending challenge.

Suit Challenges Massachusetts Law Creating Abortion Clinic Buffer Zones

Suit was filed in federal district court in Boston on Friday challenging Massachusetts' recently-enacted law (SB 1353) creating a 35-foot buffer zone around abortion clinics. In McCullen v. Coakley (full text of complaint), a group of pro-life advocates who wish to talk with, and distribute literature to, women entering a Boston area Planned Parenthood clinic ask that the new law be declared unconstitutional on its face and as applied. Alliance Defense Fund, announcing the filing of the lawsuit, said: "It’s ironic that Massachusetts, the ‘cradle of liberty,’ would pass a law that effectively creates a First Amendment-free zone that silences those who seek to share the truth about abortion."

Saudi Arabia Now Allows Unaccompanied Women In Hotels

Saudi Arabia has moved away from strict Islamic law and has begun permitting women to stay at the country's hotels, unaccompanied by a male relative or guardian. Both BBC News and the AP reported yesterday on the royal decree that permits the Ministry of Trade to promulgate new regulations that merely require unaccompanied women to present photo ID to a hotel manager. This information then must be sent to local police. The decision was adopted after a study conducted by the Interior Ministry, the Supreme Commission of Tourism and the Commission for the Propagation of Virtue and the Prevention of Vice.

The Role of Religion In Dr. Martin Luther King, Jr. Day

Today is Martin Luther King, Jr. Day. The place of religion in the federal holiday honoring the slain civil rights leader who was co-pastor at the Ebenezer Baptist Church in Atlanta, and who used religious rhetoric in many of his calls for racial equality in the United States, has always been unclear. President Bush's Proclamation declaring the 2008 date for the holiday has only this reference to Dr. King's religious beliefs: "Dr. King's faith in the Almighty gave him the courage to confront discrimination and segregation, and he preached that all the powers of evil are ultimately no match for even one individual armed with eternal truths."

Nevertheless, a visit to King's Ebenezer Baptist Church is obligatory for many of this year's presidential candidates according to yesterday's Atlanta Journal Constitution. Sen. Barack Obama spoke at Sunday services, and both Gov. Mike Huckabee and former President Bill Clinton will be at today's formal King Day observances at the Church. Huckabee will be introduced at the ceremony, but Bill Clinton-- as former President, rather than as candidate Hillary Clinton's representative-- will speak.

Meanwhile, Jonesboro, Georgia resident mark Swiger has created a religious initiative to mark MLK Day. Using the website Fulfillhisdream.org, Swiger urges every church-goer on the Sunday before Martin Luther King Day to invite along someone of a different race. Saturday's Atlanta Journal Constitution reports that the initiative is in response to King's comment that 11 a.m Sunday morning is America's most segregated hour.

Pittsburgh Presbyterian Church Gets Injunction; Holds Disaffiliation Vote

Today's Pittsburgh Post-Gazette reports that last Wednesday, Pittsburgh's Memorial Park Presbyterian Church obtained a temporary injunction from a Pennsylvania trial judge, barring the Pittsburgh Presbytery from interfering with a planned meeting of church members. At the meeting this week end, church members voted overwhelmingly to disaffiliate from the Presbyterian Church (USA) and affiliate instead with the Evangelical Presbyterian Church. A Presbytery-appointed administrative commission had written the church forbidding the meeting, but on Thursday at a court hearing the Presbytery withdrew its opposition to the injunction when church officials agreed not to take any action to dispose of church assets. Earlier this month, the church filed a separate lawsuit seeking to confirm its title to church property and prevent seizure of its buildings by the Presbytery after negotiations with the Presbytery broke down. (Church letter announcing lawsuit.)

Britsh Gay Rights Group Protests Evangelical As Equalities Commissioner

Today's London Guardian reports that a gay rights group in Britain is criticizing the appointment of Joel Edwards, leader of the Evangelical Alliance and in the black community, as a commissioner to the Equalities and Human Rights Commission (EHRC). The Lesbian and Gay Christian Movement criticizes Edwards' attempts to obtain exemptions for Christian groups from non-discrimination requirements that mandate equality in the provision of goods and services to gays and lesbians. Edwards said he welcomes the presence of lesbian and gay people on the Equalities Commission and said: "I would be disappointed if my contribution to this commission is only seen in the light of issues around sexuality."

2008 Anti-Roe v. Wade Activities Have Secular Theme

Tomorrow is the 35th anniversary of the U.S. Supreme Court's decision in Roe v. Wade. While opposition to Roe has largely been religiously-based, religion has been surprisingly absent from two national anti-abortion initiatives. First, President Bush last week declared yesterday, January 20, as National Sanctity of Human Life Day. His formal Proclamation makes no mention of religion or God, nor does it specifically mention abortion. It makes reference to protecting life "at all stages", but nowhere indicates when the initial stage of life is seen to begin. It rather cryptically calls on Americans "to recognize this day with appropriate ceremonies...."

Perhaps the ceremony the President had in mind is Tuesday's March for Life in Washington. The March for Life Education and Defense Fund sponsors this annual event to mark the anniversary of Roe. Its website this year makes no mention of religion, religious beliefs or God. The march's theme this year is: "Build Unity on the Life Principles Throughout America. No Exception! No Compromise!"

Recent Scholarly Articles of Interest

From SSRN:

• John M. Kang, Deliberating the Divine: On Extending the Justification from Truth to Religious Expression, (Brooklyn Law Review ,Vol. 73, No. 1, 2007).
  
• David A. Skeel, The Paths of Christian Legal Scholarship, (U of Penn Law School, Public Law Research Paper No. 08-05, Jan. 15, 2008).
  
• Robert E. Rodes, On Professors and Poor People - A Jurisprudential Memoir, (Journal of Law and Religion, Vol. 22, No. 2, 2007).
  
• Herman Philipse, Antonin Scalia's Textualism in Philosophy, Theology, and Judicial Interpretation of the Constitution, (Utrecht Law Review, Vol. 3, No. 2, pp. 169-192, December 2007).
  
• Glenna Goldis, The Catholic Scare: How Anti-Catholic Prejudice Shaped Brown v. Board, (January 11, 2008).

Other recent articles:

• Richard F. Duncan, Justice Thomas and Partial Incorporation of the Establishment Clause: Herein of Structural Limitations, Liberty Interests, and Taking Incorporation Seriously, 20 Regent L.Rev. 37 (2007).

Egyptian State Council Gets Advice From Islamic Scholars On Copts Reconverting

Courts in Egypt have increasingly faced requests for new identification documents from Coptic Christians who have initially converted to Islam and then have reconverted to Christianity. Counselor Moataz Kamel Morsi, Deputy Chairman of the State Council, asked Egypt's top religious body, the fatwa committee at Al Azhar, for guidance. Yesterday Al Arabiya reported that the fatwa issued in response says that the decision to convert to Islam should not be retractable, and re-converting is "a grave crime that cannot be met with leniency." It concludes that offenders should first be given a chance to "repent", but if they do not they should be punished according to Sharia. Some scholars say Islamic law prescribes no specific punishment for apostasy, while others say it is punishable by death.

Pastor Briefings Being Held In Advance of Presidential Primaries

Yesterday's Dallas Morning News reports that key figures in the Texas Restoration Project that held a series of closed-door pastor briefings in the 2006 elections are taking their presentations on the road to this year's presidential primary and caucus states such as Florida, Iowa and South Carolina. Sponsors say the briefings are nonpartisan and merely urge ministers to mobilize their congregations to vote for candidates with their moral agenda. Many of the speakers at the briefings, however, are supporters of candidate Mike Huckabee.

Catholic Hospital Sued For Refusing Transgender Surgery

In San Francisco Superior Court, a transgendered individual who had completed gender reassignment surgery to become a woman sued a Catholic hospital in Daly City (CA) that refused to permit her physician to perform breast augmentation surgery in the hospital. The complaint (full text) in Hastings v. Seton Medical Center alleges that the hospital's outpatient surgery manager told plaintiff that she could not have surgery at the hospital because "God made you a man." Fox News on Friday reported on the case in which plaintiff seeks damages and injunctive relief, alleging gender discrimination in violation of California's Unruh Civil Rights Act and a claim of intentional infliction of emotional distress. A spokeswoman for the Daughters of Charity Health System (of which Seton Medical Center is a part) said in a written statement: "Vincentian and Catholic values form the basis of our identity and set the parameters for our ethics and standards of behavior in health care."

Saudis Discuss Women's Rights and Polygamy With UN Committee

The United Nations Committee on the Elimination of Discrimination Against Women is meeting in Geneva from Jan. 14 to Feb. 1 to review reports on eight countries' implementation of their obligations under the Convention on the Elimination of All Forms of Discrimination Against Women. (UN Press Release). On Jan. 17, the Committee reviewed the report on Saudi Arabia, questioning the Saudi delegation at length about various issues. (UN Press Release). Saudi Arabia signed the convention with the following reservations:

1. In case of contradiction between any term of the Convention and the norms of Islamic law, the Kingdom is not under obligation to observe the contradictory terms of the Convention.
2. The Kingdom does not consider itself bound by paragraph 2 of article 9 of the Convention [equal rights with respect to nationality of children] and paragraph 1 of article 29 of the Convention [arbitration provisions].

In this context, Saudi officials discussed with Committee experts the permissibility of polygamy in Saudi Arabia:

Islam had sanctioned polygamy ... with some restrictions, namely of the number of wives, and the equal treatment of the wives by the husband. This was because of men’s strong sexual desires, or their wish to have children in case of being married to a barren wife. Polygamy was a necessity to enable women to lead a normal life. Polygamy was ethical, as it did not allow a man to have sexual relations with any woman other than his wife, and was humanitarian, as it provided for women to be wives and to be treated as such, and provided for.... Some women preferred to be a second wife rather than living alone.

An AFP report yesterday summarized the Saudi report and the exchange between Committee experts and Saudi officials.

Sharia Councils Operate In Britain

Yesterday's London Telegraph published a report on Sharia Councils that operate in a number of British mosques. They mainly deal with issues of marriage and divorce, and with financial disputes. Under current British law, their judgments have no legal force and so are binding only on those who voluntarily agree to comply with them. Some however are arguing that British law should give some form of recognition to judgments of the dozens of existing Sharia Councils, in part to regulate a system that now operates outside civil guidelines.

Recent Prisoner Free Exercise Cases

In Hill v. Cruz, (5th Cir., Jan. 14, 2008), the U.S. 5th Circuit Court of Appeals affirmed the dismissal of a Muslim inmate's First Amendment and RLUIPA claims challenging the Texas prison system's policy on the substitution of pork entrees with other food items.

In McCollum v. California, 2007 U.S. Dist. LEXIS 95716 (ND CA, Dec. 13, 2007), a California federal district court dismissed Wiccan inmates' Establishment Clause and equal protection challenges to California's Five State-Sanctioned Faiths Policy because plaintiffs had not exhausted their administrative remedies. However it permitted inmates' free exercise claims, as well as a taxpayer Establishment Clause challenge, to move forward. (See prior related posting.)

In Hysell v. Pliler, 2008 U.S. Dist. LEXIS 2721 ED CA, Jan. 14, 2008) a California federal magistrate judge rejected an inmate's First Amendment and RLUIPA claims that he was denied access to various artifacts necessary to practice his Wiccan religious beliefs. The court found the instances cited were either justified by a compelling governmental interest or did not place a substantial burden on defendant. Certain other claims were rejected as unexhausted.

In Bryant v. Tilton, 2008 U.S. Dist. LEXIS 2930 (ED CA, Jan. 14, 2008), a California federal magistrate judge rejected a claim by a Muslim prisoner that the exclusion of those serving a life sentence without parole from California's conjugal visit program infringed his free exercise rights under the First Amendment and RLUIPA. Plaintiff argued that under Islamic law, his wife could file for annulment or divorce if their marriage is not consummated within four months. However, the court found, plaintiff married in 1993 and at that time he was able to, and did participate in the family visiting program.

In Wesley v. Muhammad, 2008 U.S. Dist. LEXIS 3136 (SD NY, Jan. 10, 2008), a New York federal magistrate judge recommended that a Muslim inmate be allowed to proceed with most of his claims that meals served and prison commissary items furnished to him at Rikers Island prison facilities violated his religious dietary requirements that limited him to Halal food.

In Best-Bey v. Commonwealth of Pennsylvania, 2008 U.S. Dist. LEXIS 3540 (ED PA, Jan. 17, 2008), an inmate alleged that he was not permitted to observe his holy day of Friday or keep his fez on for the day. A Pennsylvania federal district court dismissed the claim against the city of Philadelphia, finding that the alleged violations did not stem from any policy or practice of the Philadelphia Prison System, and that the city cannot be held on a respondeat superior theory for actions of prison employees.

Debate Over Female Circumcision In Indonesia

Today's New York Times Magazine, in an article titled A Cutting Tradition, explores the tradition of female circumcision in Indonesia and the debate in Indonesia over banning it. The Ministry of Health has prohibited medical personnel from engaging in female genital cutting, but the decree has not been backed by legislation and does not apply to traditional circumcisers and birth attendants. The article profiles the annual circumcision event sponsored by the Islamic educational and social service organization, the Assalaam Foundation.