New Articles of Interest This Week Abound

From SSRN (U.S. law):

• Lloyd H. Mayer, The Pulpit, Politics, RFRA, and Institutional Free Exercise, (Notre Dame Legal Studies Paper No. 08-30, Sept. 2008).
• Ira C. Lupu & Robert W. Tuttle, Courts, Clergy, and Congregations: Disputes between Religious Institutions and Their Leaders, (Georgetown Journal of Law & Public Policy, 2009).
• Lynn S. Branham, 'The Devil is in the Details': A Continued Dissection of the Constitutionality of Faith-Based Prison Units, (U Iowa Legal Studies Research Paper No. 08-35 (Sept. 2008).
• Aaron K. Block, When Money Is Tight, Is Strict Scrutiny Loose?: Cost Sensitivity as a Compelling Governmental Interest Under the Religious Land Use & Institutionalized Persons Act of 2000, (September, 23 2008).
• Scott C. Idleman, Private Conscience, Public Duties: The Unavoidable Conflicts Facing a Catholic Justice, (University of St. Thomas Law Journal, Vol. 4, pp. 312-324, 2007).
• Martha M. Ertman, 'They Ain't Whites; They're Mormons': An Illustrated History of Polygamy as Race Treason, (U. of Maryland Legal Studies Research Paper No. 2008-37, September 2008).
• Ira C. Lupu & Robert W. Tuttle, Constitutional Change and Responsibilities of Governance Pertaining to the Faith-Based and Community Initiative, in Research on Innovations in Effective Compassion (HHS, June 2008).

From SSRN (non-US law):

• Kathryn Chan, Taxing Charities/Imposer Les Organismes DeBienfaisance: Harmonization and Dissonance in Canadian Charity Law, (Canadian Tax Journal/ Reue Fiscale Canadienne, Vol. 55, No. 3, 2007).
• Marc Hertogh, What's in a Handshake? Legal Equality and Legal Consciousness in the Netherlands, (Social & Legal Studies, Vol. 18, No. 2, 2009).
• Smita Narula, Equal by Law, Unequal by Caste: The 'Untouchable' Condition in Critical Race Perspective, (Wisconsin International Law Journal, Vol. 26, p. 255, 2008).

From SmartCILP:

• Symposium, The Constitutionality of Faith-Based Prison Units [full text of all articles], 6 Ave Maria Law Review 341-511 (2008).
• David C. Flatto, The King and I: The Separation of Powers in Early Hebraic Political Theory, 20 Yale Journal of Law & Humanities 61-110 (2008).

Four Texas School Board Members Urge Controversial Bible Curriculum

Last summer, the Texas State Board of Education approved only general guidelines for elective courses on the impact of the Hebrew Bible (Old Testament) and New Testament on the History and Literature of Western Civilization. (See prior posting.) So now, according to an AP report yesterday, four individual members of the 15-person Board have sent an e-mail to all school districts encouraging them to adopt one specific approach-- the National Council On Bible Curriculum In Public Schools. That curriculum has been criticized by some as promoting Protestant perspectives, and last March, Ector County, Texas, schools settled a lawsuit with an agreement not to use that curriculum in the future. (See prior posting.)

Texas A&M Sued For Discrimination By Two Iraqi Researchers

The Houston Chronicle reported last week that two Iraqi doctors who formerly worked as researchers on in vitro fertilization at Texas A&M University have sued the University, several of its units and former co-workers for religious, racial and national origin discrimination. The researchers, who fled Iraq because of opposition to their research, say that they were regularly mocked, and that animal feces and urine were thrown on their prayer rug. After an investigation, the school refused to take action on the complaints.

U.S. House Calls On Lithuania To Preserve Jewish Cemetery

On Thursday, the U.S. House of Representatives passed by a vote of 414-1 and sent to the Senate H. Con. Res. 255. The Resolution expresses strong support for the work of the United States Commission for the Preservation of America's Heritage Abroad which works to preserve sacred historical sites in Eastern and Central Europe. The Resolution goes on to protest a decision by the government of Lithuania to permit commercial construction "within the perceived boundaries" of a 500-year old Jewish cemetery in Vilnius.

Maldives Supreme Court Hears Challenge To President's Religious Beliefs

In the Maldives, the country's Supreme Court is hearing a fascinating challenge to the right of President Maumoon Abdul Gayoom to stand for re-election. Under the Maldives constitution, only Muslims are entitled to citizenship. (See prior posting.) The conservative Adhaalath Party claims that Gayoom is an "infidel" because he has denied Jesus' second coming, the teaching that the Quran will ascend to heaven on judgment day and the doctrine of blood money. He also disagrees with scholars on which offenses can be pardoned and he says that veiling for women is not compulsory. His opponents also claim he has attempted to spread Christianity in the Maldives. The Election Commission ruled in Gayoom's favor, saying that he had been issued a Maldivian identity card which is only issued to Muslims, and that the challengers had not carried their burden of proving otherwise.

Minivan News reports that arguments in an appeal of the Election Commission decision began in the Supreme Court on Thursday and continue today. Gayoom's lawyers argue that the texts relied upon by the Adhaalath Party are open to interpretation. Underlying the dispute are Gayoom's attempts to creack down on Islamic extremism since a bombing in September 2007 aimed at the country's tourism industry.

Orlando's Ordinance Restricting Feeding Homeless In Parks Held Unconstitutional

In First Vagabonds Church of God v. City of Orlando, (MD FL, Sept. 26, 2008), a Florida federal district court found that Orlando's Large Group Feeding Ordinance violates the speech rights of an activist group that feeds the poor and infringes the free exercise rights of a church that holds Sunday services, including the sharing of food, in a downtown city park. The Ordinance requires a permit to feed more than 25 people in any downtown park, and limits a group to two permits per park in a 12 month period. The court held that the activist group, Orlando Food Not Bombs, was engaged in expressive conduct and that the Ordinance prevents OFNB "from communicating its Constitutionally protected speech at a meaningful location which, from time immemorial, has been the traditional public forum for free speech."

Moving to the free exercise claim, while the court had previously held that the Ordinance did not substantially burden First Vagabond Church of God's exercise of religion under Florida's Religious Freedom Restoration Act (see prior posting), it now held that nevertheless it does violate the church's First Amendment free exercise rights. The court concluded that the city has no rational basis for the Ordinance. It found that "none of the legitimate government interests proffered by the City are served by this Ordinance." Friday's Orlando Sentinel reported on the decision, describing the plaintiffs as "a motley group of activists who have been feeding the homeless."

Recent Prisoner Free Exercise Cases

In Reid v. Wiley, 2008 U.S. Dist. LEXIS 73372 (D CO, Sept. 24, 2008), a Colorado federal district court rejected a magistrate judge's recommendation that an inmate's free exercise claim be dismissed because he failed to allege what religion he practices. The court said it is well known that plaintiff is in prison specifically because he committed highly publicized acts of terrorism connected with groups claiming to espouse Islam.

In Falls v. Alton City Jail, 2008 U.S. Dist. LEXIS 72869 (SD IL, Sept. 24, 2008), a federal district judge dismissed an inmate's complaint that Islamic Imams were not allowed to visit the jail for religious services, finding that plaintiff had failed to exhaust his available administrative remedies before filing suit.

In McDowell v. Heffren, 2008 U.S. Dist. LEXIS 71677 (CD IL, Sept. 22, 2008), an Illinois federal district court rejected an inmate's claims that he was disciplined for reciting a prayer, that he was fired from his prison job on the basis of religion and race, and that his religious tape was illegally confiscated.

Malaysia's High Court Upholds State Laws Prohibiting Religious Deviations

Saturday's Borneo Post reports that Malaysia's Federal Court has upheld the constitutionality of the state of Selangor's Syariah law and a similar statute enacted by the state of Terengganu. The laws prohibit a Muslim from disobeying the Sultan as head of the religion of Islam or disobeying fatwas. One of the defendants involved was Abdul Kahar Ahmad who had declared himself a prophet. Other defendants were his followers, or, in one case, a follower of the Ayah Pin sect. Defendants argued that the statutes under which they were prosecuted violate Section 11 of the Constitution that protects of the right to profess one's religion. The court held, however, that state legislatures can prohibit those who profess Islam from going against the faith's precepts.

Court Defines Funding Criteria For University of Wisconsin Student Groups

In a long-running debate over use of student activity fees to fund a Catholic student group’s activities at the University of Wisconsin- Madison, a Wisconsin federal district court has issued a declaratory judgment requiring that funding decisions be made on a viewpoint neutral case-by-case basis, instead of categorically denying funding to worship, proselytizing and activities involving sectarian religious instruction. In Roman Catholic Foundation v. Regents of the University of Wisconsin System, 2008 U.S. Dist. LEXIS 72980 (WD WI, Sept. 24, 2008), the court dissolved an earlier preliminary injunction (see prior posting) and instead merely ruled that "the University may not categorically exclude worship, proselytizing or sectarian instruction from segregated fee funding unless it does so pursuant to a rationale that is reasonable in light of the purposes of the forum and viewpoint neutral."

Under this rationale, according to the court, the University could refuse to fund worship if it determined that

activities involving little more than an assembly of students who offer praise to a person, object or idea are less valuable to the forum than an assembly of students who engage in the back-and-forth discussion of an idea. Thus, the University may decline to fund activities involving nothing more than mechanical praise, provided that it does not simultaneously fund secular activities that lack a discussion component.

Applying this standard, the court concluded that the University had failed to adequately justify specific refusals to fund activities challenged in this case.

Court Rejects Employee's Discrimination and Establishment Clause Claims

In Menes v. City University of New York Hunter College, 2008 U.S. Dist. LEXIS 73304 (SD NY, Sept. 25, 2008), a New York federal district court rejected an Establishment Clause claim and a Title VII religious discrimination in employment claim brought by Herman Menes, an accountant who works at Hunter College. Menes unsuccessfully objected to various "religious displays"—including angel figurines on a ledge in his supervisor’s cubicle, posters that were displayed around St. Patrick’s Day, Thanksgiving and Christmas, a Christmas tree and menorah that were displayed in December in the Bursar’s Office and at an office party, and a Time Magazine cover featuring the Pope that was left in obvious view of the office printer. Menes' religious discrimination claim alleged that another employee "was permitted to leave work to attend religious functions without loss of pay … while Plaintiff was reprimanded for leaving the office during work hours."

More Tax Twists To ADF's "Pulpit Initiative"

Yesterday’s New York Times and a posting by Melissa Rogers point out another legal twist in tomorrow’s Pulpit Initiative sponsored by the Alliance Defense Fund to challenge the IRS rules on political activity by churches.. (See prior posting.) Earlier this month, three former IRS officials who are now lawyers in private practice wrote to the IRS Office of Professional Responsibility (full text of letter) asking it to investigate whether ADF has violated ethical rules binding on lawyers who practice before the IRS. Treasury Department Circular No. 230 provides that lawyers may not suggest to a prospective client that they violate any federal tax law. (Sec. 10.51(7)). ADF has offered to represent churches taking part in the Pulpit Initiative. ADF has also added a disclaimer to its website to prevent its advice being considered a "marketed opinion" as defined in Circular 230. A lawyer can issue a “marketed opinion” only if the lawyer concludes that it is more likely than not that the taxpayer will prevail using the tax advice included in the opinion. (Sec. 10.35).

Army Is Sued for Forcing Christian Religious Beliefs On Personnel

Yesterday the Military Religious Freedom Foundation filed suit in Kansas federal district court, along with Army Specialist Dustin Chalker, alleging that the Army improperly requires military personnel to attend official functions and formations that include sectarian Christian prayer. According to the complaint in Chalker v. Gates, (D KS, filed 9/25/2008) (full text), Chalker is an atheist and is stationed at Fort Riley, Kansas. The complaint alleges a pattern of unconstitutional advancement of religion by the Defense Department and the U.S. Army that violates the Establishment Clause and effectively imposes a religious test as a qualification for Chalker to perform his military duties.

The Hays (KS) Daily News reports on the filing of the lawsuit. A posting at God and Country blog points out that this lawsuit is similar to one filed in 2007 by MMRF on behalf of Specialist Jeremy Hall, except the current lawsuit alleges that Chalker, sought permission not to attend the events through "his chain of command and the equal opportunity process," which did not yield "satisfactory results." In a motion to dismiss filed in the Hall case, the Defense Department argued that Hall failed to use existing internal procedures to complain about his treatment. (See prior posting.) [Thanks to Scott Mange for the lead.]

Sunday's Pulpit Initiative Will Challenge IRS Limits On Non-Profits

This Sunday is Alliance Defense Fund's "Pulpit Initiative". ADF has encouraged pastors to use the day to challenge Internal Revenue Service restrictions on churches (and other non-profits) that preclude them from endorsing or opposing political candidates. Today's Toledo Blade reports on ADF's plans. (I am among those interviewed for the article, and some of my comments on the reasons for the IRS limits are quoted.) An ADF White Paper outlines its arguments against the constitutionality of the IRS provisions, and an FAQ document describes the Initiative as "a strategic litigation plan". ADF says that participating pastors:

will deliver to their congregations sermons of their own that apply Scripture to the subject of candidates for government office. The sermons are intended to restore a pastor’s right to speak freely from his pulpit without fearing censorship or punishment by the government. By standing together and speaking with one voice, it is our hope to recapture the rightful place of pastors and churches in American life.

Some 33 pastors from 22 states will participate according to the Los Angeles Times. Participants will include Rev. Gus Booth of Warroad Community Church in Minnesota and Rev. Wiley S. Drake of First Southern Baptist Church of Buena Park, California. [CORRECTION: ADF has informed me that Drake will not be one of the participants in the Pulpit Initiative.] Americans United issued a release on Wednesday criticizing the Pulpit Initiative, calling it "a Religious Right-led effort to politicize America’s pulpits." The Interfaith Alliance has posted a video titled Pulpit Politics: The Race for Pastor-in-Chief pointing out dangers of endorsements from the pulpit. (See prior related posting.) [Updated]

9th Circuit Says Genocide Requires Specific Intent

In Abagninin v. AMVAC Chemical Corp., (9th Cir., Sept. 24, 2008), the U.S. 9th Circuit Court of Appeals dismissed a suit under the Alien Tort Statute (ATS) that had been brought by workers in the Ivory Coast against manufacturers, distributors, and users of the pesticide DBCP. ATS allows suits in U.S. courts by an alien for a tort committed in violation of the law of nations or of a treaty of the United States. The suit charged that defendants committed genocide and crimes against humanity, claiming that they knew the pesticide would cause male sterility and low sperm counts. The court held that genocide is defined under customary international law as a specific intent crime. Relying on the definition of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide, the court held that genocide requires a specific intent to destroy a national, ethnic, racial or religious group. Mere awareness of the likely consequences of an action is not enough. Yesterday's San Francisco Chronicle reports on the decision.

Jewish Congress Members Criticize Kosher Meat Processor

On Monday, twelve Jewish members of Congress, all Democrats, sent a letter (full text) to the owners of Agriprocessors Inc., criticizing the large kosher meat processing firm. As summarized in a press release from New York Rep. Gary Ackerman: "The letter expresses deep concern over the company’s alleged mistreatment of its workers and animals and the violation of U.S. laws and Jewish standards." The Forward reports on the letter, summarizing the allegations against the company's Postville, Iowa plant which culminated in a federal immigration raid in May. (See prior related posting.)

After Arkansas Raid, 6 Children In State Custody, Sect Leader Arrested

As previously reported, last week federal authorities, as part of a child pornography investigation, raided the southwest Arkansas compound of the Tony Alamo Christian Ministries. Since then there have been two developments. The state took six minor girls into temporary custody. (AP, 9/22).Today and Monday, three Miller County, Arkansas circuit judges will hold probable cause hearings to determine whether the state can continue to hold the girls in temporary custody. (AP, 9/25). Meanwhile yesterday Ministries leader, 74-year old Tony Alamo, was arrested by the FBI on charges of transporting a minor across state lines with the intent to engage in sexual activity. (CNN, 9/25).

En Banc Review Sought From 10th Circuit In Las Cruces Decision

Plaintiffs yesterday filed a petition asking the U.S. 10th Circuit Court of Appeals to grant en banc review of a 3-judge panel decision in Weinbaum v. City of Las Cruces. (See prior posting.) The panel dismissed two cases challenging on Establishment Clause grounds the display of Latin crosses as a symbol of Las Cruces, New Mexico-- one involving the city's symbol and the second involving use of crosses as a logo by the Las Cruces school district. Yesterday's Las Cruces Sun-News reports that the review petition relates only to the suit against the city. Plaintiff Paul Weinbaum said that the arguments in both cases are similar.

Britain's 2012 Olympic Bathrooms Will Accommodate Muslim Religious Rules

Britain's Olympic Delivery Authority, planning for hosting of the 2012 Olympics, wants to be welcoming to people of all cultures, faiths, ages and abilities. It is taking several steps to accommodate Muslim religious practices. According to yesterday's London Telegraph, Islamic law prohibits Muslims from facing Mecca-- the direction of prayer-- when they use the toilet. Therefore, a percentage of the general toilets available to attendees will not face Mecca. In a second move, special washing facilities will be constructed next to Muslim prayer rooms. The Telegraph says that the Olympics are not the only venue in which Britain has taken account of the direction that toilets face. Last year, the government turned the toilets in Brixton prison in London after inmates complained of having to sit sideways on them in order to comply with restrictions of religious law.

Britain Plans To End Exclusion of Catholics From Monarchy

London's Guardian and AFP today report that Britain's Labour government has drawn up proposals to amend the country's 300-year ban on Catholics serving as monarch. The change, planned to be introduced after the next election, would be part of other constitutional amendments, including modifications to provisions that now favor male heirs in succession to the throne. According to the Guardian: "The 1688 Bill of Rights , the Act of Settlement in 1701 and Act of Union in 1707 - reinforced by the provisions of the Coronation Oath Act 1688 - effectively excluded Catholics or their spouses from the succession and provided for the Protestant succession.... The law also requires the monarch on accession to make before parliament a declaration rejecting Catholicism." (See prior related posting.) The changes would require consent of all the Commonwealth nations since Britain's monarch is also formally their head of state. Many experts say the changes would also lead to disestablishment of the Church of England as the country's official religious body.

Delaware Clergy Sex Abuse Case Settled

Yesterday's Chicago Tribune reported that a Navy doctor has settled a Delaware state lawsuit against the Archmere Academy and the Norbertine religious order. He received an undisclosed amount of money plus public apologies by various defendants. The suit grew out of the months of sexual abuse plaintiff as a child had suffered at the hands of Norbertine Catholic priest Edward J.Smith who was a teacher and campus minister at Archmere. The settlement came after plaintiff Cmdr. Kenneth Whitwell convinced Delaware courts of the constitutionality of the state's Child Victim Act that created a two-year window for formerly time-barred child sex abuse suits to be filed. (See prior posting.) In other litigation growing out of the abuse, Whitwell has already obtained over $41 million in damages.