Catholic Anti-War Demonstrators May Not Assert "Necessity" Defense

In United States v. McSweeney, (D MA, July 24, 2008), a federal magistrate judge denied a motion by a group of anti-Iraq War demonstrators that they be permitted to raise a defense of "necessity" in their trial. Defendants, members of the Catholic Worker Movement, entered a Worcester (MA) federal courthouse and, without a permit, dropped to their knees and began to pray for an end to Iraq war. After they finished they were arrested on charges of obstructing entrances, obstructing official business and failing to comply with directions of US Marshals. The court ruled that the criteria necessary to assert a defense of "necessity" are not present in this kind of civil disobedience case. Today's Worcester (MA) Telegram reports on the decision.

Spanish Gay Pride Marchers Charged With Insulting Catholics

Article 525.1 of the Spanish Penal Code prohibits publicly making fun of beliefs or ceremonies of members of any religious confession, or humiliating those who practice any religion. Pink News today reports that in Spain, a pro-family group, HazteOir, has invoked this provision in charges filed against organizers of this year's Madrid Gay Pride celebration. Marchers at the event carried a banner picturing Pope Benedict XVI on fire and calling him "chief of the inquisitors."

Kazakstan Expels Unregistered Foreign Missionaries

Interfax reports today that Kazakhstan's Justice Minister Zagipa Baliyeva told a cabinet meeting today that a large number of foreign missionaries from the United States, Georgia, South Korea and Japan have been expelled from the country. The expulsions followed court findings that the foreigners were working as missionaries without the required registration. Baliyeva particularly mentioned the head of Narconon, an organization connected to the Church of Scientology, who was banned for five years from re-entering the country.

Court Rejects Amish Free Exercise Defense In Building Permit Cases

In Morristown, New York, a Town Court judge has refused to dismiss charges against eight Amish men who built or moved homes without the required permits. Today's Watertown Daily Times reports that the defendants, members of the Swartzentruber Amish sect, argued that requirements for smoke alarms and for engineers to approve building designs violate their religious beliefs that oppose modernization. The court, however, rejected their free exercise claims, writing that "the Amish desire 'not to conform to this world' must be reasonably and rationally tempered with required compliance to regulations imposed by a town and society in which they are citizens." The court also rejected motions to dismiss "in the interest of justice" and arguments that defendants had been denied a speedy trial. (See prior related posting.)

British Court Says Sikh Girl Can Wear Kara To School

In Britain, a High Court judge ruled today that a Sikh teenager should be permitted to wear her "Kara" , a plain steel bracelet that is a symbol of her faith, despite school rules against wearing most jewelry. According to Reuters, the court concluded that the ban on religious and racial discrimination required Aberdare Girls' High School in south Wales to exempt 14-year old Sarika Singh from the school's ban on jewelry (other than wrist watches and ear studs). The school argued that the bracelet could be seen as a "symbol of affluence". (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Fowler v. Crawford, (8th Cir., July 25, 2008), the U.S. 8th Circuit Court of Appeals upheld a decision by Missouri state prison officials to deny a Native American prisoner's request for a sweat lodge to practice his religious faith. Inmate Clifford Fowler alleged that the denial violated his rights under RLUIPA. The court concluded, however, that the prison had a compelling interest in maintaining order and security, and that other alternative were offered to Fowler. Just because another prison in the state's system operates a sweat lodge without incident does not demonstrate that prohibiting a sweat lodge was the least restrictive means to further the institution's security concerns. (See prior related posting.)

In Hathcock v. Cohen, (11th Cir., July 23, 2008), involved claims by a Muslim prisoner that he was prevented from wearing a Kufi, attending Friday prayer services and eating kosher meals on some days during Ramadan. The U.S. 11th Circuit Court of Appeals held that RLUIPA does not create a private action for damages against prison officials in their individual capacities. The court then rejected plaintiff's First Amendment claims, holding that the requirement to obtain approval for religious attire was reasonable as was the reliance on volunteer chaplains to conduct Jumu'ah services. The temporary failure to receive kosher meals was an oversight that was corrected by prison officials.

In Wolff v. Perkins, 2008 U.S. Dist. LEXIS 55815 (D NH, July 21, 2008), a New Hampshire federal district court dismissed as moot a prisoner's claim that his rights under RLUIPA were violated when his kosher meal privileges were temporarily revoked because he had violated the requirements of a kosher diet. Revised prison policies bar the food service supervisor from suspending an inmate's kosher diet, and instead refer such inmates to the chaplain for counseling. (See prior related posting.)

In Heleva v. Kramer, 2008 U.S. Dist. LEXIS 55027 (MD PA, July 16, 2008), a Pennsylvania federal district court rejected an inmate's First Amendment and RLUIPA challenges to a prison rule that packages containing books will be delivered to prisoners only if sent directly from the publisher. Confusion about the source of two religious books shipped to plaintiff resulted in an 8-month delay in his obtaining them. (See prior related posting.)

In Stanko v. Patton, 2008 U.S. Dist. LEXIS 56269 (D NE, July 24, 2008), a Nebraska federal district court rejected First Amendment claims by a litigious white supremacist prisoner who claimed to be an ordained minister of a non-Christian white supremacist religion known as the Church of the Creator. Plaintiff asserted that he was entitled to a holy meal of fresh fruits and nuts to break his religious fast. The court held that there are legitimate cost and security reasons for refusing the special food items. It concluded: "Hate is not a religion and jails do not have to provide nuts and fresh fruits to satisfy the whims of haters." (See prior related posting.)

Establishment Clause Does Not Prevent Court's Deciding Dispute Over Burials

In Attal v. Taylor, (CA Ct. App., July 25, 2008), a California state appellate court held that the Establishment Clause did not preclude it from settling a complicated dispute between three siblings regarding the burial of their mother and brother.

Sharon Attal petitioned a court to have the body of her mother-- Joan Taylor-- removed from a crypt where it had been interred in 1988, and buried in a Jewish cemetery. Joan was born Jewish, but during most of her life was a practicing Presbyterian, and raised her children as Presbyterians. However in 1989, Joan's daughter Sharon began practicing Judaism. When Sharon's brother Mark died, Joan disregarded his instructions that his body be placed next to their mother's, and instead Joan had Mark buried in a Jewish section of a cemetery. Subsequently, Sharon entered an arrangement with her other brother, Dennis, to move their mother Joan's remains to the Jewish cemetery next to Mark, and to transfer the crypt space for use by Dennis and his wife. The fourth sibling, John, however objected, and the cemetery refused to move Joan's body unless a court order was obtained.

When Sharon petitioned the court to have her mother's body moved, John petitioned the court instead to have Mark's body moved from the Jewish cemetery back to the crypt next to their mother, as Mark had originally requested. The trial court denied Sharon's petition and granted John's. The Court of Appeals affirmed, concluding that it could apply neutral principles to resolve the dispute, without becoming entangled in questions of religious doctrine. While the trial court elicited evidence on whether or not Joan and Mark had been practicing Jews, this was relevant to the neutral inquiry regarding their wishes as to the disposition of their remains.

India Supreme Court Considering Constitutionality of Haj Subsidy

On Monday, India's Supreme Court set for hearing a lawsuit by former BJP member of parliament Praful Goradia challenging the constitutionality of the government subsidy given to Muslims going on Haj. IANS reported that a government affidavit supporting the subsidy argues that the Haj has secular foreign policy and foreign relations elements. It said that friendship with foreign countries, including Arab countries, is an aspect of the country's foreign policy. Indian Muslims on Haj "promote international goodwill and understanding". Goradia, on the other hand, claimed that a subsidy for Muslims, without similar subsidies for Hindus, Christians, Buddhists and Sikhs, is discriminatory. (See prior related posting.)

Lithuania Grants Recognized Status To Seventh-Day Adventists

The Adventist News Network reported yesterday that Lithuania has granted the Seventh-Day Adventist Church's application for state recognized status under its Law on Religious Communities and Associations. The determination, made on July 15, means that the church will be entitled to state subsidies and certain tax exemptions. Also its clergy and theology students will be exempt from military service.

Ukrainian President Wants National Church Separate From Moscow Patriarchate

Ukrainian president Viktor Yushchenko wants to create a Ukrainian Orthodox Church, ending affiliation with the Russian Orthodox patriarchate in Moscow. Saturday's Washington Post reported that at the start of a prayer service marking the 1,020th anniversary of Ukraine's and Russia's conversion to Christianity, Yushchenko said: "I believe that, as if by the gift of God, as a historical truth and justice, a national self-governing church will be established in Ukraine," and asked visiting leader of the Orthodox Church, Bartholomew I of Constantinople, to approve the idea. Bartholomew's response was non-committal, as he became the first head of the Orthodox Church to visit Ukraine in 350 years. Many fear that if Constantinople supports Ukraine's move, this could lead to a major schism with Moscow. Unlike Ukraine, countries such as Georgia and Bulgaria have their own Orthodox Patriarchs.

UPDATE: On Wednesday, Archbishop Ionafan representing the Ukrainian Orthodox Church of the Moscow Patriarchate strongly criticized President Yushchenko's bid for an independent Ukrainian church. According to Interfax, Ionafan said Yushchenko "abused his authority, violated the constitution and ignored the opinion of hierarchs on the unity of the Russian Orthodox Church."

California Buddhist Temple In Complex Litigation Over Control of Assets

Saturday's Long Beach (CA) Press-Telegram reported on the complicated litigation in a battle between two factions for control of Wat Vipassanaram, a Long Beach Cambodian Buddhist temple. The problems began last January when a dissident group, alleging mistreatment of the wat monks and abuse of authority sought an election to replace the board of the Khmer Buddhist Association that controls the temple. (Press-Telegram, Jan. 25). When the group moved ahead with the election of three new officers, opponents, including the temple's monks, went to court. (Press-Telegram, Feb. 15).

On July 2, a Superior Court judge appointed a receiver to manage the finances of the Khmer Buddhist Association, but the temple leadership refused to turn over assets or records to the receiver. On July 8, Siphann Tith, president of the Khmer Buddhist Association, told the receiver that most of the assets had been donated him to a newly formed organization called "Wat Khmer Vipassaram" and had been put under the supervision of the Church of Revelation, a Gnostic church in Orange. (Press-Telegram, July 15).

On Saturday the Press-Telegram reported that the Church of Revelation filed suit in federal court alleging that the court-appointed receiver, David Pasternak, and ten others attempted to improperly seize the assets that were donated to it by the Buddhist temple. The suit challenges the order of the state Superior Court judge that threatened contempt charges if the temple's assets are not turned over to the receiver. The federal lawsuit argues that the temple's donation of assets to the church is protected under First Amendment's Free Exercise clause. The complaint alleges that by divesting itself of all its assets, the temple's board was following the teachings of its religion's founder, Siddhartha Gautama.

South Dakota High Court Issues 3 Decisions On Inmate's Kosher Food Claim

Last week, the South Dakota Supreme Court issued three separate opinions in the case of convicted murderer Charles Sisney who has been litigating extensively over the kind of kosher meals to which he is entitled while in prison. Sisney v. Best, Inc., (SD Sup. Ct., July 23, 2008), involved claims that the bread Sisney was served was not certified as kosher. The court dismissed Sisney's claims under federal civil rights statutes and the state's deceptive trade practices law. However the court permitted Sisney to proceed with his tort claim of deceit.

In Sisney v. State of South Dakota, (SD Sup. Ct., July 23, 2008), the court held that Sisney was not a third party beneficiary to a contract between the state and a food services supplier under which the supplier was to furnish prison meals-- including those to accommodate religious requirements-- which averaged 2500 to 2700 calories per day.

In Sisney v. Reich, (SD Sup. Ct., July 23, 2008), the court allowed Sisney to move ahead with his claim that he was a third-party beneficiary of a settlement agreement between the Department of Corrections and a former inmate. Under that agreement, DOC agreed to provide a kosher diet to all Jewish inmates who requested it, including prepackaged kosher meals for lunch and dinner. Sunday's Bismarck Tribune reported on the decisions. (See prior related posting.)

New Articles and Book of Interest

From SSRN:

• Mark C. Modak-Truran, Beyond Theocracy and Secularism (Part I): Toward a New Paradigm for Law and Religion, (Mississippi College Law Review 159, 2007-2008).
• Robert C. Blitt, How to Entrench a De Facto State Church in Russia: A Guide in Progress, (Brigham Young University Law Review, July 21, 2008, Forthcoming).
• Mark C. Modak-Truran, Book Review: Michael J. Perry, Toward a Theory of Human Rights: Religion, Law, Courts (2007), (Journal of Religion, Vol. 88, No. 2, p. 257, April 2008).
• Mark C. Modak-Truran, Introduction: Symposium on Religion, Religious Pluralism, and the Rule of Law, (Mississippi College Law Review, Vol. 27, p. 1, 2007-2008).
• Gary J. Simson, Reflections on Free Exercise: Revisiting 'Rourke v. Department of Correctional Services', (Albany Law Review, Vol. 70, p.1425, 2007).
• Asifa Quraishi, Who Says Shari'a Demands the Stoning of Women? A Description of Islamic Law and Constitutionalism, (Berkeley Journal of Middle Eastern & Islamic Law, Vol. 1, pp. 163-177, 2008).

Other Recent Articles:

• Joseph Bottum, The Death of Protestant America: A Political Theory of the Protestant Mainline (First Things, Aug./Sept. 2008).
• Jack S. Levey, Why Is This Tenant Different From Other Tenants? Representing A Tenant With A Kosher Business, (Probate and Property, July/Aug. 2008, 38-41).

New Book:

• John Witte, Jr. & Frank S. Alexander (eds.), Christianity and Law: An Introduction, (Cambridge Univ. Press, June 2008).
  

Violence Connected To Religion Sweeps 4 Countries In Unrelated Incidents

Since Friday, in unrelated incidents in four countries around the world, deadly violence with some connection to religious disputes or religious institutions have captured the headlines. In Iraq, in two separate incidents, Shiite pilgrims were killed on their way to ceremonies honoring imam Mussa Kadhim who died 12 centuries ago. On Sunday, gunmen killed 7 pilgrims in Madin, south of Baghdad. Today in Baghdad, bombs killed 25 pilgrims heading toward a shrine, and wounded 70 others. (AFP).

In Turkey today, two bombs exploded in Istanbul killing 17 and wounding 150. While the bombings appeared to be the work of Kurdish separatists retaliating for a crackdown on the outlawed Kurdistan Workers' Party (PKK), they came just as Turkey's Constitutional Court was preparing for a key hearing in the lawsuit seeking to ban the country's ruling party for undermining the secular nature of the country. (AFP).

In India, a series of coordinated bombings in Ahmedabad on Saturday killed at least 45 people. A group called the "Indian Mujahideen" claimed responsibility for the attacks, saying they were in retaliation for a 2002 massacre of Muslims by Hindus in Gujarat. The bombings followed others one day earlier in Bangalore killing one woman. (Reuters-Sun. and Reuters-Mon.).

In the United States yesterday, a man carrying a shotgun in a guitar case entered a Knoxville, Tennessee Unitarian Universalist church and opened fire during the performance of a play by a group of children. He killed two people in the audience and wounded seven others. (New York Times). UPDATE: AP reports that the accused shooter, Jim D. Adkisson, left behind a note indicating that he had targeted the Unitarian church because he was upset with its liberal policies, including its acceptance of gays.

Westboro Baptist Church Loses Tax Appeal

In In re Tax Exemption Application of Westboro Baptist Church, (KS Ct. App., July 25, 2008), the Kansas Court of Appeals agreed with the state's Board of Tax Appeals that a pickup truck used by the Westboro Baptist Church to transport church members and signs for the church's high profile picketing of military funerals and other events is taxable personal property. The signs, in "acrimonious language", express the church's view that "God has punished and will continue to punish the United States because of the country's willingness to condone homosexuality." Kansas law grants a tax exemption to property that is used exclusively for religious purposes. Rejecting Free Exercise and Establishment Clause claims, the court concluded that the church's picketing activities have substantial amounts of political and secular content in addition to expressing religious beliefs, and thus do not qualify for the exemption.

Yesterdays Wichita Eagle , reporting on the decision, said that church officials will appeal to the Kansas Supreme Court even though only about $130 per year in taxes is at issue. Church spokesperson Shirley Phelps-Roper said that the principle of taxing religion is at stake, but that it probably did not really matter because the end of the world will come soon. (See prior related posting.)

UPDATE: In upholding the Board of Tax Appeals, the court did find that BOTA's labelling of signs as nonreligious when church members believed them to be religious was an Establishment Clause violation. However, the court found this to be harmless error.

Poll Says Many British Muslim College Students Hold Islamist Views

Today's London Telegraph and London Times Online report that a YouGov poll for the Centre for Social Cohesion shows a wide cultural gap between Muslim and non-Muslim students at British universities. 40% of Muslim students say Shariah should be introduced into British law for Muslims. 57% agreed that Muslim members of the armed forces should be allowed to opt out of operations in Muslim countries. While 53% of Muslim students say that killing in the name of religion is never justified, 28% said it was acceptable if religion was under attack and 4% said it could be justified to promote or preserve religion. One-third of Muslim students supported the establishment of a world-wide caliphate. Among non-Muslim students, 55% thought that Islam was incompatible with democracy. 40% of Muslim students opposed Muslim men and women associating freely, and 25% of Muslim students said they had little respect for gays. The report titled "Islam on Campus" says the group Hizb ut-Tahrir is responsible for much of the radicalization of Muslim students on British campuses.

Times Magazine Carries Photos of FLDS Ranch

The cover story in today's New York Times Magazine is titled Children of God. It introduces a series of 16 photos and another of 18 photos of FLDS women and children taken on July 17 and 18 by photographer Stephanie Sinclair who was was permitted access to the Yearning for Zion Ranch near Eldorado, Texas. In April, Texas authorities, concerned about polygamy and underage marriages, raided the ranch and temporarily took its children into custody. (See prior related posting.)

Muslim Women Sue McDonald's Franchise For Hiring Discrimination

Friday's Detroit News reports that two Muslim women have filed a religious discrimination lawsuit in state court against a Dearborn, Michigan McDonald's restaurant and its manager. The women, who applied for jobs at McDonald's, were told that they would not be able to wear their hijab (Muslim headscarf) while at work because it was too hot in the kitchen for the head coverings. The McDonald's in question is in the midst of many businesses that cater to Dearborn's large Arab-American population, and some of the restaurant's menu items comply with requirements for Halal food. Owners of the franchise say they have a strict policy against discrimination of any kind.

DC Historic Church Refused Request To Permit Demolition

Last year, over the church's objections, the Washington D.C. Historic Preservation Review Board in a unanimous decision (full text) voted to designate D.C. Third Church of Christ, Scientist as an historic landmark. (See prior posting.) Now, according to a Washington Post report on Friday, the Review Board has unanimously voted down the church's request that it be permitted to tear down its building and construct a new one in its place. Church officials say that the concrete building, designed by architect Araldo Cossutta, has an unwelcoming appearance, is dark inside and is expensive to heat and cool. Preservation Board chairman Tersh Boasberg criticized church leaders for failing to try to work out alternatives to demolition. Apparently church officials will now file a lawsuit challenging the Review Board's decision as a violation of the Religious Land Use and Institutionalized Persons Act.

Posting of Anti-Muslim Audio Clip Protected By Fair Use Doctrine

In Savage v. Council on American-Islamic Relations, (ND CA, July 25, 2008), a California federal district court rejected copyright infringement claims brought by radio talk-show host Michael Savage against CAIR. After Savage engaged in a four-minute anti-Muslim, anti-CAIR tirade on air, CAIR posted on its website an audio file of the relevant portion of the broadcast as well as a critique of the remarks. Savage sued, claiming that CAIR "in posting the audio clip on their website, engaged in copyright infringement in an effort to raise money for terrorism and further a terrorist conspiracy." The court held that CAIR's use of the audio clip is protected by the fair use doctrine. Savage also alleged a civil RICO claim against CAIR which the court dismissed on standing, proximate cause and pleading grounds, indicating that CAIR had substantial First Amendment defenses to the claim. However plaintiff was given leave to amend the RICO portion of his complaint. Friday's San Jose (CA) Mercury News reported on the decision.