Recent Prisoner Free Exercise Cases

In Terrero v. United States, (11th Cir., April 29, 2008), the U.S. 11th Circuit Court of Appeals rejected claims by a Jewish prisoner that his rights under the 1st Amendment and RFRA were violated when federal prison officials failed to provide him with the means to celebrate the festival of Sukkot, failed to provide him with challah bread instead of matzah crackers, and failed to contract with a rabbi to provide religious services. The Columbus (GA) Ledger-Enquirer reported on the decision last week.

In Starr v. Cox, 2008 U.S. Dist. LEXIS 34708 (D NH, April 28, 2008), a New Hampshire federal district court dismissed a prisoner's RLUIPA and 1st Amendment claims. It held that even though plaintiff raised a question of material fact as to whether the practice of Tai Chi, separate from Taoism, is part of a system of religious belief, and as to whether his beliefs are sincerely held, plaintiff failed to show that his religious exercise was substantially burdened. Even if they were, defendants demonstrated that the prison's Tai Chi restrictions serve a compelling state interest using the least restrictive means.

In Rhodes v. Alameida, 2008 U.S. Dist. LEXIS 35764 (ED CA, May 1, 2008), a California federal magistrate judge rejected free exercise, equal protection and due process challenges by a Native American inmate to the prison's confiscation and disposal of certain contraband property that plaintiff claimed had religious or spiritual significance to him.

Israel Funds Construction of Reform Synagogue For First Time

The Jerusalem Post reports on yesterday's scheduled ground breaking for the first Reform synagogue funded by the Israeli government. Until now, only Orthodox synagogues could receive state funds. The Conservative and Reform Jewish movements are not officially recognized by Israel's rabbinate. In the past some municipalities had set aside land for non-Orthodox synagogues, but this is the first funding for construction. Money for the prefab that will house Modi'in's Yozma Reform Congregation came as the result of a compromise after a lawsuit was filed against Modi'in's Construction and Housing Ministry by the Israel Religious Action Center. It claimed that the Ministry's planned allocation of state funds for religious institutions was discriminatory. In the settlement, IRAC agreed to drop the lawsuit and construction and housing minister Isaac Herzog agreed to furnish the new building. IRAC says it doubts whether funds for additional Reform synagogues will be forthcoming because recently the Religious Affairs Ministry was reinstituted and its head is a member of the Orthodox Shas party. [Thanks to Religion and State In Israel for the lead.]

State Department Suggesting Diplomats Change Language In Describing Islamic Terrorists

The AP reported last week on a memo titled Words That Work and Words That Don't: A Guide for Counterterrorism Communication that was originally prepared in March by the Extremist Messaging Branch at the National Counter Terrorism Center and was approved for diplomatic use last month by the State Department. It grows out recommendations from American Muslim leaders on how to describe terrorists who invoke Islamic theology in justifying their attacks. Those recommendations built on three premises: "(1) We should not demonize all Muslim or Islam; (2) Because the terrorists themselves use theology and religious terms to justify both their means and ends, the terms we use must be accurate and descriptive; and (3) Our words should be strategic; we must be conscious of history, culture, and context. In an era where a statement can cross continents in a manner of seconds, it is essential that officials consider how terms translate: and how they will resonate with a variety of audiences." The Investigative Project on Terrorism on Friday published an opinion piece by Steve Emerson who is critical of the memos.

Ohio Supreme Court Upholds Property Tax Exemption For Episcopal School Property

In Episcopal School of Cincinnati v. Levin, (Ohio Sup. Ct., March 12, 2008), the Ohio Supreme Court held that the Episcopal Diocese of Southern Ohio was entitled to a property tax exemption for the year 2001 for property it acquired to use for a church-affiliated inner-city school so long as on Jan. 1 of that year it intended to use the property for tax exempt purposes. The exemption for the year was not lost even though later in the year before the application for exemption was filed it appeared that the Diocese would likely not be able to complete the financial arrangements to develop the school. The property was sold off to a for-profit entity late in 2002. Justice Lanzinger dissented. A Supreme Court press release summarizes the decision.

Catholic Paper In Malaysia Wins Initial Court Victory

In Malaysia, the Catholic newspaper The Herald has won an initial victory in its challenge to a government claim that it may not use "Allah" as a synonym for God in its Malay-language reporting. Today's International Herald Tribune reports that High Court Judge Lau Bee Lan rejected the prosecutor's claim that the challenge is frivolous. The government argues that use of "Allah" by Christians might confuse Muslims. The Herald says that "Allah" is an Arabic word that has been used more generally for centuries to mean "God" in Malay. (See prior related posting.) In a separate case, the Sabah Evangelical Church of Borneo has also filed suit after officials last year banned its import of books containing the word "Allah".

Recent Scholarly Articles of Interest

From SSRN:

• Andrew M.M. Koppelman, Phony Originalism and the Establishment Clause, (Northwestern Public Law Research Paper No. 08-15, April 25 2008).


• Patrick McKinley Brennan, Differentiating Church and State (Without Losing the Church),(Georgetown Journal of Law & Public Policy, Forthcoming).


• Brian J. Bilford, Harper's Bazaar: The Marketplace of Ideas and Hate Speech in Schools, Stanford Journal of Civil Rights and Civil Liberties, Vol. 4, 2008).

The electronic journal, Law & Ethics of Human Rights, Vol. 1, 2007 has recently appeared through Bepress. Among the articles of interest in this issue devoted to Multiculturalism & the Anti-discrimination Principle are:

• Nancy L. Rosenblum, Banning Parties: Religious and Ethnic Partisanship in Multicultural Democracies.


• Rajeev Bhargava, On the Persistent Political Under-Representation of Muslims in India.


• Alon Harel, Regulating Modesty-Related Practices.


• Tzvia Greenfield, Is It Really so Benign? Gender Separation in Ultra Orthodox Bus Lines.


• Moshe Cohen-Eliya, Is Conditional Funding a Less Drastic Means?.


• Stephen Macedo, In Defense of Conditional Funding of Religious Schools.


• Iddo Porat, On the Jehovah's Witnesses Cases, Balancing Tests, and Three Kinds of Multicultural Claims.

From SmartCILP:

• Symposium. Gender Relevant Legislative Changes in Muslim and Non-Muslim Countries. Table of Contents, 64 Washington & Lee Law Review 1291-1568 (2007).

Jewish Parents In Plano, TX Say Students Harassed To Take New Testament

The Plano, Texas School District finds its policy of granting all outside groups equal access to unstaffed distribution tables at schools under attack. Saturday's Dallas Morning News reports that parents of some Jewish students at Vines High School say their children were pressured and taunted by other students to pick up a copy of the Gideons' New Testament. School officials have talked to students about tolerance, but have not disciplined anyone for making comments to the Jewish students such as "if the Bible touched you ... would you burn...?" Some parents have suggested that the schools limit display tables to quieter areas such as the library or classrooms. Others have urged the school to warn them when Christian displays are being set up.

Kentucky 10 Commandments Case Appealed To 6th Circuit

In the latter part of April a notice of appeal to the U.S. 6th Circuit Court of Appeals was filed in ACLU of Kentucky v. Grayson County, Kentucky, a case in which a Kentucky federal district court permanently enjoined a display of the Ten Commandments as part of a Foundations of American Law and Government Display in the Grayson County (KY) Courthouse. (See prior posting.) On Thursday, The Record (Grayson County) reported that Liberty Counsel has agreed to argue the appeal at no cost to the county. Meanwhile the courthouse continues to display an empty frame where the Ten Commandments had been, while retaining the other documents in the display. The Ten Commandment Defense group has put up seven highway billboards showing the Ten Commandments, and more than 150 local businesses have agreed to display the Ten Commandments to protest their removal from the courthouse.

Turkish Schools In Pakistan Offer Moderate Islamic Alternative

Today's New York Times carries a front page article titled Turkish Schools Offer Pakistan a Gentler Vision of Islam. It reports on a group of Turkish educators-- offering an alternative to both public schools and madrasas-- who have:

an entirely different vision of Islam. Theirs is moderate and flexible, comfortably coexisting with the West while remaining distinct from it. Like Muslim Peace Corps volunteers, they promote this approach in schools, which are now established in more than 80 countries, Muslim and Christian....

They prescribe a strong Western curriculum, with courses, taught in English.... They do not teach religion beyond the one class in Islamic studies that is required by the state.... [H]owever, they encourage Islam in their dormitories, where teachers set examples in lifestyle and prayer....

The model is the brainchild of a Turkish Islamic scholar, Fethullah Gulen... Moderate as that sounds, some Turks say Mr. Gulen uses the schools to advance his own political agenda.

Illinois Man Seeks "In God We Trust" As New Name

Zion, Illinois school bus driver and amateur artist Steve Kreuscher is asking an Illinois court to permit him to legally change his name to "In God" [first name] "We Trust" [last name]. Yesterday's Chicago Daily Herald reports that the 57-year old says: "Those words are an endangered species. You might take it off the money, but you can't take away my name." A hearing on the name change is scheduled in a Lake County court on June 13. [Thanks to Scott Mange for the lead.]

West Virginia High Court Rejects Challenge To Prosecutor's Biblical References

In State of West Virginia v. Keesecker, (WV Sup. Ct. App., April 25, 2008) West Virginia's Supreme Court of Appeals rejected a claim by a defendant who had been convicted on six counts of sexual assault that her convictions should be reversed because the trial judge permitted the prosecutor to refer to biblical theory and examples during closing argument. Because no objection was made at trial to the comments, the court could reverse only under the "plain error doctrine". The court said:

The essence of the prosecutor's biblical citations ... involved the prosecutor's perception of the jury's role as the "Throne of Judgment" and the judge's role as the "Throne of Mercy." ...[T]he prosecutor cited various Old Testament characters and the judgments allegedly made by God upon their actions. Because this Court cannot conclude that the prosecutor's biblical references impacted the Appellant's substantial rights and seriously affected the fairness, integrity, or public reputation of the judicial proceedings, we decline to utilize the plain error doctrine....

The court however did reverse appellant's conviction and remand for a new trial on other grounds. Friday's Bluefield (WV) Daily Telegraph discusses the case.

Recent Develpments In the FLDS Child Custody Case

Carey Cockerell, the Texas Commissioner of Family and Protective Services, testified before the Texas Senate Committee on Health and Human Services last Wednesday on developments and challenges in the handling of children taken into foster care after the raid of the FLDS ranch in Eldorado, Texas. A recording of the full hearing is available from the Senate's website. The previously scheduled hearing was to focus on needs of the Department, on the foster care system and on preventing child abuse. The Department of Family and Protective Services posted on its website a release summarizing the Commissioner's testimony, as well as a follow-up letter to the chairman of the committee. DFPS has also posted a "Model for Care" for the FLDS children and a "Cultural Awareness Guide" for caregivers. Saturday's Deseret News discusses the Cultural Awareness Guide.

Last Thursday, Tom Green County District Court released a document titled the Bishop's Record that contains the names, ages and locations for many of the FLDS men, women and children. An article in Friday's San Angelo Standard-Times discusses the document and also contains a sidebar with links to all the court document that have so far been released in the case.Texas DFPS has posted on its website a breakdown by age and gender of the 464 FLDS children. The website also contains a chronology of the investigation and a Frequently Asked Questions document.

Meanwhile Cardozo Law School professor Marci Hamilton published an article on FindLaw contending that the due process and religious freedom arguments raised by FLDS members lack merit.

Israel's Supreme Rabbinical Court Invalidates Conversions Performed By Two Rabbis

In Israel, the tensions between those who want impose strict conversion standards on individuals seeking to become Jews and those who opt for somewhat more liberal standards have again surfaced in a decision of the Supreme Rabbinical Court last week. YNet News and My Obiter Dicta blog report that the Court has ruled all conversions performed since 1999 by Rabbis Chaim Drukman and Chaim Avior are invalid. As reported by Haaretz, the two rabbis in question operate a special conversion court at Or Etzion Yeshiva . The special courts were created to speed up the conversion process. They are responsible directly to the Prime Minister's Office and the government's chief rabbis. These special courts have been opposed by the ultra-Orthodox (haredi) Bet Din (religious court) system. The ruling came in the context of a divorce proceeding originating in the Ashdod Rabbinical Court, but the decision will affect many converts. The decision is likely to be appealed to Israel's High Court of Justice for final resolution.

UPDATE: Monday's Jerusalem Post reported that Chief Sephardi Rabbi Shlomo Amar assured the thousands of affected converts on Sunday that their conversions would continue to be recognized by the rabbinic establishment. Apparently Amar had expressly ordered the judges not to publish the opinion. Others, however, say that the charges leveled by the Supreme Rabbinical Court against Rabbi Chaim Drukman are so serious that his conversions will inevitably be called into question. The court accused Druckman of intentionally violating Jewish law, lying, and forging official rabbinic documents. The Jerusalem Post also reports that the Public Petitions Committee of the Knesset will hold an emergency meeting Monday to discuss the issue.

UPDATE: Tuesday's Jerusalem Post publishes an analysis of the ideological split involved in the conversion dispute. It views it as a clash between religious Zionist and haredi rabbis.

Iranian Artist In Europe Gets Death Threats From Home

A fatwa urging the killing of Iranian artist Sooreh Hera, who now lives in the Netherlands, has been published in Iranian newspapers, according to Fox News today. The death threats came after the artist attempted to display her photos of gay men titled "Adam & Ewald, Seventh-Day Lovers." Some of the photos include depictions of the Prophet Muhammad and his son-in-law Ali. Art Amsterdam, a Dutch art festival, has now agreed to show Hera's work next month, but only if the photos of partly undressed men wearing masks of Ali and Muhammad are excluded. Hera has called on the Dutch Ministry of Culture to give protection to controversial art and artists.

Britain Approves Shariah Compliant Insurance Company

Britain's Financial Services Authority has, for the first time, granted regulatory approval to an independent insurance company that will offer Shariah-compliant home and auto insurance. Financial Advice reported on Friday that Principle Insurance will now be able to offer Britain's 2 million Muslims insurance products that do not compromise their religious beliefs. The blog Islam in Europe explains details of the insurance products that the company will provide.

Anti-Evolution Film Makers Sued for Copyright Violations

The AP reported last week that producers of the already controversial film Expelled: No Intelligence Allowed are now being sued by Yoko Ono who claims that the film violates copyright laws by using portions of John Lennon's song Imagine in the movie. While the production company Premise Media says that it is protected under the fair use doctrine, Ono's lawsuit says that the way the song is listed in the film's credits inaccurately suggests to viewers that the producers had permission to use it. (Background from Wall Street Journal, April 16). The film's premise as set out by it producers is that "educators and scientists are being ridiculed, denied tenure and even fired – for the 'crime' of merely believing that there might be evidence of 'design' in nature, and that perhaps life is not just the result of accidental, random chance." On Friday, the Fair Use Project of Stanford Law School's Center for Internet and Society announced that it will defend Premise Media in the lawsuit.

Court Says Employer Has Burden Under Title VII To Attempt Accommodation

In EEOC v. Texas Hydraulics, Inc., (ED TN, April 16, 2008), a Tennessee federal district court denied defendant's motion for summary judgment in a Title VII religious discrimination lawsuit. Keith Vogeler, a production employee, would not work from sundown Friday to sundown Saturday for religious reasons. Vogeler was dismissed by Texas Hydraulics after refusing to work on seven different Saturdays. The court held that, under Title VII of the 1964 Civil Rights Act, the employer has the burden of showing that it offered the employee a reasonable accommodation or at least considered possible options that would have accommodated an employee and that these options were rejected because they would have caused an undue hardship. Here Texas Hydraulics offered no evidence that it attempted to find a reasonable accommodation. The case is discussed in last Monday's BNA Corporate Law Daily [subscription required].

USCIRF Issues Its 2008 Report on International Religious Freedom

Today the U.S. Commission on International Religious Freedom announced release of its 2008 Annual Report (full text) recommending eleven countries be designated as "countries of particular concern"-- those that are are most restrictive of religious freedom. The countries on the list are: Burma, North Korea, Eritrea, Iran, Pakistan, China, Saudi Arabia, Sudan, Turkmenistan, Uzbekistan, and Vietnam. The Report also includes a Watch List of countries that require close monitoring, though which are less oppressive that the CPCs. Those on the Watch List are Afghanistan, Bangladesh, Belarus, Cuba, Egypt, Indonesia, and Nigeria. The Commission is postponing its recommendations as to Iraq pending a Commission visit to the country later this month. This compromise was approved after a sharp party-line split among Commissioners over the draft chapter in the report on Iraq. (New York Sun). USCIRF's recommendations are made pursuant to provisions of the 1998 International Religious Freedom Act. This year's recommendations largely mirror those in last year's report. USCIRF's recommendations go to the State Department for its use in preparing its annual report on international religious freedom. [Thanks to Blog from the Capital for the lead.]

New Appeal Filed By FLDS Mothers In Attempt To Regain Custody of Children

On Wednesday, attorneys for 38 mothers of children taken from the FLDS Ranch in Eldorado, Texas filed an an Amended Petition for Writ of Mandamus (full text) with a Texas state appellate court seeking return of their children. The case is captioned In re Sara Steed, et. al. (TX 3d Ct. App.). The new petition argues that the trial court abused its discretion in failing to return the children to their mothers and in denying them visitation rights.

Today's Ft. Worth Star Telegram says the petition argues that the children should not have been removed from their mothers without evidence the mothers pose an immediate physical danger to the children. It alleges that mere fear of a dangerous culture or mindset is insufficient to justify removal. Yesterday's Deseret News reports the petition suggests that the mothers and children could be ordered to live together off the FLDS compound while the state is investigating. Since the FLDS men are the alleged abusers, they could be ordered off the YFZ Ranch or protective orders barring the men from contact with the women and children could be issued. (See prior related posting.)

6th Circuit Rejects Amish Challenge to Septic Tank Requirements

In Beechy v. Central Michigan District Health Department, (6th Cir., April 23, 2008), the U.S. 6th Circuit Court of Appeals rather summarily affirmed a district court decision rejecting free exercise and RLUIPA claims by Amish defendants who objected to septic tank size requirements. The Amish claimed that installing larger tanks would incur wasteful expenses and tempt them to install modern conveniences in their homes, such as bathrooms. The court held that challengers had not shown any "substantial burden" on a religious practice. It also upheld the trial court's denial of plaintiffs' motion to amend their complaint and allege a new state law claim under Michigan's Right to Farm Act.